Right Decision, Wrong Reason

Same-Sex Marriage & The Supreme Court

In consequence of last month’s Supreme Court ruling in Hollingsworth v. Perry, California has rejoined twelve other states and the District of Columbia in issuing marriage licenses to same-sex couples. That leaves thirty-seven states that still refuse to recognize same-sex marriage. Does that refusal violate the Constitution—and if so, why?

The Court in Hollingsworth v. Perry avoided answering that question. Instead, the Court ruled that it did not have jurisdiction over the case because the state officials who would ordinarily defend in court a state law challenged as unconstitutional declined to do so and the private parties who wanted to defend the law in court lacked “standing” to do so. The Court therefore left in place (without affirming) the ruling of the federal trial court in San Francisco that Proposition 8, a referendum-approved constitutional amendment that excluded same-sex couples from civil marriage, violated the equal protection clause of the Fourteenth Amendment.

In the other case handed down on same-sex marriage, United States v. Windsor, the Court ruled both that it had jurisdiction over the case and that the Defense of Marriage Act’s exclusion of same-sex marriages from the federal definition of “marriage,” and therefore from the many federal benefits granted to married couples, was unconstitutional. In the majority opinion, Justice Anthony Kennedy, speaking for himself and Court’s four more liberal justices, concluded that DOMA violated the equal protection guarantee of the Fifth Amendment’s Due Process Clause. DOMA violated equal protection, reasoned the majority opinion, because the exclusion of same-sex couples from civil marriage was based on a demeaning view of such marriages as “second-class,” as morally inferior to opposite-sex marriages. As the majority put it, “[t]he differentiation demeans the [same-sex] couple... whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

In my judgment, the Court made the right decision in Windsor, but the majority was much less clear than it should have been about why DOMA’s exclusion of same-sex marriages was unconstitutional. Kennedy’s opinion for the majority should not have put any weight on the alleged “animus” of those opposed to same-sex marriage. “Hate your neighbor or come along with us,” was how Justice Antonin Scalia characterized Kennedy’s reasoning. Scalia’s indignation was understandable. Kennedy’s suggestion that DOMA was based on the view that gays and lesbians are inferior human beings is tendentious in the extreme, and demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution.  

Kennedy should have avoided casting such stones, for there were ample grounds for his judgment in the protection the Constitution affords to the individual’s right to religious and moral freedom.

To be sure, some persons oppose same-sex marriage because they judge gays and lesbians to be inferior human beings. As the Connecticut Supreme Court has noted, gays and lesbians are often “‘ridiculed, ostracized, despised, demonized and condemned’ merely for being who they are . . .” Justice Kennedy was right to argue that such “demeaning” views cannot be the basis for marriage laws in our constitutional system. However, many who oppose same-sex marriage—including the magisterium of the Catholic Church—do so for a different reason. The church teaches not that gays and lesbians are inferior but that same-sex sexual conduct is immoral. Moreover, the bishops insist that their condemnation of same-sex sexual conduct is not based on revelation but on natural law reasoning, and in that sense it is not a sectarian religious belief. Indeed, according to the magisterium, it is immoral not just for same-sex couples but for anyone and everyone—even a man and a woman who are married to one another—to engage in any sexual conduct that is “inherently nonprocreative.” Because “[w]hat are called ‘homosexual unions’ . . . are inherently nonprocreative,” declared the Administrative Committee of the U.S. Conference of Catholic Bishops, they “cannot be given the status of marriage.”

I accept the bishops’ argument regarding the nonreligious nature of their opposition to same-sex marriage. The burden for the bishops, however, is the high bar set by the Constitution’s protection of religious and moral freedom—often called freedom of conscience. That right, recognized in international law, protects one’s freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments (see my Human Rights in the Constitutional Law of the United States). Of course that right is not unconditional. Government may interfere with one’s freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments in order to protect “public safety, order, health, or morals or the fundamental rights and freedoms of others.” Protecting public morals is undeniably a legitimate government objective. The crucial question, of course, is what morals count as public? Does a state’s refusal to grant same-sex couples access to civil marriage protect public morals? If those laws are based either on a religious belief that certain conduct is immoral or on the nonreligious belief of a minority—a narrowly held belief that is widely contested—government is not truly acting to protect public morals. It is acting, instead, to favor a minority’s moral convictions, and that is not a legitimate government objective.

Admittedly, it is not always obvious when a particular nonreligious moral belief is a minority moral belief. In answering that question, it is helpful to keep in mind what the celebrated American Jesuit John Courtney Murray wrote to Boston’s Cardinal Richard Cushing in the mid-1960s about laws decriminalizing access to contraception. “T]he practice [contraception], undertaken in the interests of ‘responsible parenthood,’ has received official sanction by many religious groups within the community,” Murray noted. “It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right. The stand taken by these religious groups may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of law and jurisprudence.”

Murray’s reasoning offers a reliable guide when it comes to the legalization of same-sex civil marriage. At this point, not many people would dispute that the church’s teaching about the immorality of inherently nonprocreative sexual conduct has become a conspicuously minority moral position. In this regard, it bears emphasis that the teaching is famously controversial even among Catholic moral theologians, not to mention the larger community of religious ethicists. In this decades-long moral and social debate, the church has been singularly unpersuasive.

As the record in United States v. Windsor amply confirmed, DOMA’s denigration of same-sex marriages was clearly based on the judgment that same-sex marriage is morally inferior to opposite-sex marriage. For some, that judgment rests primarily on the religious belief that same-sex sexual conduct is contrary to the will of God; for others, the judgment rests primarily on the nonreligious belief that all “inherently nonprocreative” sexual conduct is immoral. Neither belief, however, is a legitimate basis of government policy under the right to religious and moral freedom, a right that for almost fifty years—under the name “the right of privacy”—has been part of the constitutional law of the United States.

We may fairly say of state refusals to recognize same-sex marriage much the same thing Murray said to Cardinal Cushing about laws forbidding the distribution of contraceptives: Same-sex marriage "has received official approval by various religious groups within the community. It is difficult to see how the state can refuse to countenance, as contrary to public morality, a relationship that numerous religious leaders and other morally upright people approve as morally good. The stand taken by these religious groups and others may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of the right to religious and moral freedom."


Related: Worth Worrying About?

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"Moreover, the bishops insist that their condemnation of same-sex sexual conduct is not based on revelation but on natural law reasoning, and in that sense it is not a sectarian religious belief. Indeed, according to the magisterium, it is immoral not just for same-sex couples but for anyone and everyone—even a man and a woman who are married to one another—to engage in any sexual conduct that is “inherently nonprocreative."

I think this belief that the natural law should be the slam-dunk winner in a deciding what the civil law should be keeps the bishops from engaging in effective argument over these issues. You would have to start with getting agreement that natural law should control and then agreement on what natural law is and how it should be interpreted. Their assumption is that it is natural law as defined and interpreted by the Catholic Church but other people will have other definitions and interpretations or may reject the whole premise of a controlling natural law and argue that the law should not forbid actions unless they harm other people. 

Perhaps unintentionally, the article gives he impression that majority support is enough to make a law valid. However, the purpose of a Constitution, and particularly a bill of rights, is to protect the minority against what was called "the tyranny of the majority". If a majority of Americans believed that mixed-race marriages were wrong, the laws forbidding them would still have fallen because thy were unconstitutional. 

There are lots of useful arguments the bishops might make, but a bare assertion that the civil law must conform to natural law is not enough. 

So much blather on why we need same-sex marriage.  So little intelligence.  Everyone, absolutely everyone, knows that physically the unions are not the same.   All humans are equal, but we are not all the same.   Justice demands that those differences be recognized.

Justice demands that people have a right to marry those whom they choose to marry.  If a man is incapable of performing the physical sexual act and, therefore, his physical union with his wife is not the same as that of a couple both of whom are physically capable of the sex act, should the marriage not be allowed?

I commend this to the readers here:    http://www.nytimes.com/2005/07/05/opinion/05coontz.html?_r=2&

This non-lawyer has probably missed some of the subtleties, but is seems that, 1) by saying that the federal government must abide, in its treatment of benefits, by whatever the States say is a marriage; and 2) that marriage is essentially a contract like any other, whose conditions can be negotiated -- that polygamy may not be far behind.  If marriage is no longer defined as between one man and one woman, but rather between one individual and another, why should that second definition be allowed to stand?  Why just "one"?  Especially in light of 1) the biblical evidence that the patriarchs and kings of Israel had multiple wives (and concubines), and 2) the growing population of Muslims and others (e.g., Hmong) in this country  who practice polygamy elsewhere in the world, the case may well be made that this is a matter of religious liberty.  Brigham Young and the Mormons of old may yet be justified. 

Let's not pretend to be surprised when it happens.  (And I apologize for the tortured syntax!)

A brief coda:  One reason that the bishops' argument has been unpersuasive is exactly because of the biblical evidence mentioned above:  Were those patriarchs and kings flouting the natural law?  If so, why did God bless Ishmael, son of Abraham and his wife's maid Hagar?  Why did God allow the illegitimate offspring of David and the wife of Uriah the Hittite to become King Solomon?

 

The natural-law argument needs a little more work.

"There are lots of useful arguments the bishops might make, but a bare assertion that the civil law must conform to natural law is not enough."

Indeed, it is not. "Outside the Catholic Church, the Theory of Natural Law has few advocates today. It is generally rejected for three reasons." (James Rachels, "The Elements of Moral Philosophy," 2012.) It presumes that what is natural is good; the opposite is easily demonstrable. It confuses "is" with "ought" and thus fails the test of human reason and experience. And, finally, the theory of Natural Law conflicts with modern science. It is fraught with hubris--presuming that nature has made all things for the sake of human beings.

Mr. Perry might have pointed out that the basis of the bishops’ position,

“that same-sex sexual conduct is immoral. Moreover, the bishops insist that their condemnation of same-sex sexual conduct is not based on revelation but on natural law reasoning, and in that sense it is not a sectarian religious belief. Indeed, according to the magisterium, it is immoral not just for same-sex couples but for anyone and everyone—even a man and a woman who are married to one another—to engage in any sexual conduct that is ‘inherently non procreative.’”

is a minority opinion among US Catholics.

Moreover, even accepting that same-sex conduct is immoral, it still does not follow that people of the shame sex should not, as a matter of secular law, be allowed to marry.  Plenty of immoral “sexual conduct that is ‘inherently non procreative” occurs among heterosexual married couples, too.

Indeed, when there is a demand by a significant number of polygamous couples for regognition of their unions as "marriage" and if no one is able to find any harm ensuing from such unions, I would expect them to be recognized as marriage as well.

While that seems unlikely, it would mark a return to the traditional marriage so often depicted in the Bible.

Marriage is a privilege not a right.  Justice does not demand that everyone receive the same privilege.  And gays can exercise that privilege by choosing someone of the opposite sex.  Or they can cohabitate.  And there is certainly no 'right' to government benefits.  That concept is nonsensical in the extreme.

Justice allows things which are different in essence to be treated differently. 

What one person thinks is immoral is the civil right of another person.  A key factor is whether or not negative consequences are personally visited on a different person, i.e, violence against the person, theft, discrimination, etc.

Some Catholics think that birth control abortion and divorce and remarriage are immoral.  In this pluralistic society, that point of view has not been adopted by the large portion of society. 

If there is "certainly no 'right' to government benefits," why are they automatically bestowed on people of the opposite sex who enter into any form of marriage?

 

 

In the United States, religious marriage may be viewed as a privilege.  Religious institutions can decide whether to marry a particular couple in accordance with the institution's religious convictions.  Civil marriage, however, is a right, not a privilege.  This fundamental aspect of American law was established by the Supreme Court's 1967 decision in Loving v. Virginia (388 U.S. 1).  In his decision for the Court in Loving, Chief Justice Warren wrote the following:

"Marriage is one of the 'basic civil rights of man' fundamental to our very existence and survival."  (citations omitted).

Of course, people have advanced arguments as to why this basic civil right should be denied to same sex couples, just as people once argued that it should be denied to interracial couples.    

 

 

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About the Author

Michael J. Perry holds a Robert W. Woodruff University Chair at Emory University, where he teaches in the law school. His most recent book is Human Rights in the Constitutional Law of the United States (Cambridge University Press).

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