Tag Archives: Same-sex Marriage

DeGirolami on Standing and Justiciability in the Same-Sex Marriage Cases

I have a short piece over at Commonweal on the issues of standing and justiciability in United States v. Windsor and Hollingsworth v. Perry. Here’s a little bit:

Yet the question of relevance persists: Even if lawyers and judges pay attention to standing, why should the public care about it, particularly when matters of equality, freedom, and civil rights are jostling for the limelight?

First, because less is more. The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly:

The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict.

Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers.

Second, it is we who have the primary duty to make the law. We are given that duty by the federal and state constitutions, each of which provides representative mechanisms for us to discharge our duty. But the duty remains ours, not the Supreme Court’s. Constitutions are collections of entrenched choices made by the people to obligate not only their representatives and officials, but also themselves. Justice Kennedy’s dissent in the Proposition 8 case likewise notes that California’s popular initiative system represents a choice by the people of the state about where to vest law-making authority. A people that has no time for justiciability is more likely to cede its law-making powers and duties. Eventually, it will not even remember what power it has surrendered. It will then have the judges it deserves.

Gay Wedding Cakes and Liberalism

Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections.  One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.

This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation.  By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe.  Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed.  They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction.  Liberalism is the philosophy at the heart of the enduring American constitutional order.

Alas, liberalism is losing out in the culture wars.  The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity.  Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.

The predominant forces in both camps are pushing anti-liberal agendas.  In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage.  Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities.  On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula.  In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”

Where are the liberals?  Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state.  Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations.  Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions.  Let’s not fight another Thirty Years’ War.”

Let me try to preempt some likely objections with two concluding observations.

First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set.  It’s child’s play for lawyers, philosophers, and economists  to demonstrate that almost anything one person does affects other people.  When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake.  Conversely, having to make the cake would impose real offense and moral indignity on the baker.  Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful.  Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”

Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation.  Since the state runs the military, it must decide whether gay people can serve in the armed forces.  Since the state regulates adoptions, it must decide whether gay people can adopt.  And there are of course other examples.  But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to.  The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of  meaning and morality that require choosing between contending world views.  This isn’t always possible, but it’s possible much more of the time than it happens.

Calling all liberals . . .

How Would Jesus Rule on Same-Sex Marriage?

As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position.  Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching.  But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”

That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him.  The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?”  Often, these questions involved marriage and sexuality:  May a man divorce a woman for any and every reason?  How should a woman caught in adultery be punished?  If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven?  It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”

It would be presumptuous of me to say how Jesus would answer that question, so I won’t.  But I will offer three observations from things Jesus actually said in response to similar questions.

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules.  That is what Jesus did on divorce.  When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning.  Jesus was not advocating a change in the law, but a change in people’s hearts.

Christian thinkers have long debated the distinction between legal and spiritual marital norms.  When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal.  Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal.  Lewis argued for a pragmatic differentiation between the spiritual and the legal.  In my view, Lewis was closer to the position staked by Jesus.

Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented.  This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed.  Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness.  I shiver to think of how he might turn the same-sex marriage question back on us.  All of us.

Report: As Cardinal, Pope Supported Civil Unions As Alternative to Same-Sex Marriage

This will cause a stir. The New York Times reports that, in a private meeting with bishops in 2010, then-Cardinal Jorge Mario Bergoglio endorsed the idea of civil unions for gay couples as an alternative to same-sex marriage.

The suggestion came in the context of debate over legalizing same-sex marriage in Argentina. Although Cardinal Bergoglio vehemently and publicly opposed the law, the Times reports, at a private meeting of the Catholic bishops conference he supported civil unions as a compromise–“the lesser of two evils,” according to the cardinal’s authorized biographer. According to the Times, this suggestion “inflamed” the meeting, and the conference voted down the suggestion. Argentina eventually legalized same-sex marriage.

The Times argues that “Cardinal Bergoglio’s readiness to reach out across the ideological spectrum and acknowledge civil unions for gay people could raise expectations that he would do the same as pope,” but concedes that Pope Francis may have less need, and ability, to compromise on the issue. Anyway, in political terms, civil unions seems to be an idea whose time has passed–it’s doubtful that gay rights supporters would settle for anything less than marriage at this point.

Pierceson, “Same-Sex Marriage in the United States”

This month, Rowman and Littlefield Publishers published Same-Sex Marriage in the United States: The Road to the Supreme Court by Jason Pierceson (University of Illinois, Springfield). The publisher’s description follows.Same-Sex Marriage in the United States

Same-sex marriage has become one of the defining social issues in contemporary U.S. politics. State court decisions finding in favor of same-sex relationship equality claims have been central to the issue’s ascent from nowhere to near the top of the national political agenda. Same Sex Marriage in the United States tells the story of the legal and cultural shift, its backlash, and how it has evolved over the past 15 years.

There is a clear story of jurisprudential evolution with regards to same-sex marriage from Hawaii, through Vermont, Massachusetts, New Jersey, California, Connecticut, and, remarkably, Iowa in 2009. This book aids in a classroom examination of the legal, political, and social developments surrounding the issue of same-sex marriage in the United States. While books about same-sex marriage have proliferated in recent years, few, if any, have provided a clear and comprehensive account of the litigation for same-sex marriage, and its successes and failures, as this book does.

Brownson, “Bible, Gender, Sexuality”

Bible, Gender, SexualityThis month, Wm. B. Eerdmans Publishing Company published Bible, Gender, Sexuality by James V. Bownson (Western Theological Seminary). The publisher’s description follows.

In Bible, Gender, Sexuality James Brownson argues that Christians should reconsider whether or not the biblical strictures against same-sex relations as defined in the ancient world should apply to contemporary, committed same-sex relationships. Presenting two sides in the debate — “traditionalist” and “revisionist” — Brownson carefully analyzes each of the seven main texts that appear to address intimate same-sex relations. In the process, he explores key concepts that inform our understanding of the biblical texts, including patriarchy, complementarity, purity and impurity, honor and shame. Central to his argument is the need to uncover the moral logic behind the biblical text. Written in order to serve and inform the ongoing debate in many denominations over the questions of homosexuality, Brownson’s in-depth study will prove a useful resource for Christians who want to form a considered opinion on this important issue.

European Court’s Judgment in UK Religious Freedom Cases: A First Read

Today, a chamber of the European Court of Human Rights announced its decision in the highly-anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the UK had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: the chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.

The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.

I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that Continue reading

The Civil Rights Issue of Our Time

There are many reasons why America seems to be moving inexorably toward legalizing same-sex marriage. The Sexual Revolution that has swept American society since the 1960s is probably the main explanation. There’s plenty of evidence that Americans, especially Americans below a certain age, accept the Sexual Revolution’s basic premise that sex is a harmless pleasure without much moral content, at least when it does not involve coercion or, sometimes, adultery. Divorce, once seen as a traumatic, though perhaps necessary, last resort for very troubled marriages is no longer regarded as an exceptional event. People speak without irony of “starter marriages;” fewer and fewer people marry at all. And these cultural changes are not limited to the Secular Left. An Evangelical pundit got in trouble recently because, he said, he didn’t realize that being engaged to one woman while simultaneously being married to another was frowned upon in Christian circles.

Given their views about sexuality and marriage, SSM seems to many Americans a non-issue. But there is something else at work, too. Much of the success of the campaign for SSM has to do with supporters’ adoption of the language of civil rights. In our national discourse, the phrase “civil rights issue of our time” immediately suggests SSM; last week’s NYT editorial is a good example. As a rhetorical device – and I don’t mean to suggest that SSM advocates are being insincere – this is a brilliant strategy. In American politics, a group that can successfully appropriate the language of civil rights is bound to win.

That’s why I was struck recently when I saw that Rick Warren, perhaps the most influential Evangelical pastor in America today, has adopted this language on behalf of conservative Christians. In an interview about the ACA’s Contraception Mandate, Warren called religious liberty “the civil rights issue of the next decade.” He was echoing, among others, the Conference of Catholic Bishops, which has also emphasized the civil rights aspect of resistance to the mandate. This is a very shrewd rhetorical move – and, again, I don’t mean to suggest anyone is being insincere. If religious conservatives are going to prevail on issues like the Contraception Mandate, they can’t hope to persuade people on the merits of traditional sexual morality, much of which the American public now finds incomprehensible. They will have to persuade people that they represent the advance of civil rights.

Court Agrees to Review DOMA and Prop 8

The Court has granted cert. in Windsor, concerning the federal Defense of Marriage Act, and Perry, concerning California’s Proposition 8. The religion overtones of both cases are obvious and make them of great interest to CLR readers. Here is Adam Liptak’s coverage in the New York Times.

CLR Fellow Andrew Hamilton Wins Writing Prize

We are proud to announce that one of our talented student fellows, Andrew Hamilton, has won third place in the national “Religious Freedom Student Writing Competition,” sponsored by the Washington D.C. Mid-Atlantic Chapter of the J. Reuben Clark Law Society and the International Center for Law and Religion Studies.  Andy’s paper, The New York Marriage Equality Act and the Strength of its Religious Exceptions (supervised by Mark), explores whether the religious exceptions under the New York same-sex marriage law allow Catholic Charities to refuse to place foster children with same-sex couples.

The paper will be published in a forthcoming issue of the Journal of Catholic Legal Studies.  Andrew will be traveling down to Washington D.C. this Thursday to attend the  2012 International Religious Liberty Award Dinner, whose guest of honor is Douglas Laycock.

Warm congratulations to Andy!