Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 19, 2013

Michael and Rick on the DOMA Decision

Two MOJ-ers, Michael Perry and Rick Garnett, have now written for Commonweal about United States v. Windsor.  Let me add my own thoughts.

Michael says, "Right decision, wrong reason."  I agree with him but disagree in turn with his own reason.  Michael rightly criticizes Kennedy's opinion for reducing all opposition to same-sex marriage (SSM) to "animus" against gays and lesbians or a judgment that they are inferior beings.  Michael nails it when he says that Kennedy's reasoning is in turn "demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution."  Michael's justification for the decision, instead, is that it upholds "the individual's [constitutional] right to moral and religious freedom."  He rests this not on the special importance of marriage as a moral or religious act or relationship for gays and lesbians, but rather on the fact that rejection of SSM fails to qualify as a standard enforcing "public [rather than private] morals" (my emphasis).  Michael says that "if 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" (emphasis in original).  Since he says the opposition to SSM is not necessarily religious, his problem with it is that it's "a narrowly held belief that is widely contested."

I disagree with that both as a constitutional standard and as a conclusion on the facts here.  It doesn't seem to me that we have a general constitutional right to personal freedom whenever the reason for restricting that freedom is "widely contested" and can be characterized as "a narrowly held belief."  Michael's new book will no doubt marshal a powerful argument for his position, but it seems to me too close to saying "the Constitution enacts Mr. John Stuart Mill's On Liberty."  As a general approach, I think we need to preserve deference to democratic decisionmaking except when there are particular interests that call for more stringent review.  Moreover, on the facts, it seems to me that although opinions on marriage are changing, the opposite-sex-only view is still far from "narrowly held": it represents the substantial majority in many states, which is far different from the contraception prohibitions, which, when Murray wrote, remained in only two states, where they were usually unenforced.  Michael, given your argument, do you think that Roe and Casey were rightly decided--and rightly decided simply because restrictions on abortion are "widely contested" (without some need to establish that they seriously impose on women's physical autonomy or life plans)?

Instead, I think Windsor was rightly decided but should have rested on the ground--argued in this brief and article, both co-authored by Doug Laycock and me--that some form of heightened scrutiny should apply because DOMA effectively discriminated based on sexual orientation, which should be a semi-suspect classification, and/or because it discriminated against gays and lesbians in the exercise of their fundamental right to marry.  I think these grounds (1) would more honestly describe the review that the Court is applying, and (2) would avoid denigrating nearly half the population by dismissing their traditionalist views of marriage as animus and hatred, but (3) would recognize that the arguments made for excluding same-sex couples from marriage are too speculative to justify the significant unequal effect that the exclusion has on gay and lesbian couples and the children they are raising.

I share Rick's worry that the "animus" ground on which the Court actually relied not only denigrates those holding the traditionalist view, but by doing so increases the threats to religious liberty from the recognition of SSM: by suggesting that opponents "are best regarded as backward and bigoted, unworthy of respect," it "is not likely to generate compromise or accommodation and so it poses a serious challenge to [the] religious freedom" of religious social services, schools, individuals, etc.  Rick, of course, doesn't agree with me that Windsor was rightly decided.  And while Rick, Michael, and I have all argued for accommodations when SSM is recognized, some others would say this is misguided--that the only way to protect religious freedom is to deny SSM altogether, because (as Rick describes their argument) the campaigners for gay marriage are "aggressive and uncompromising."

Laycock and I, in our brief and article, urge that this is not necessary: it's possible to protect both same-sex marriage and religious liberty.  In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples' efforts to live out their deep, pervasive commitments--but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, "aggressive and uncompromising," will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a "live and let live" approach that will protect traditional religious organizations' ability to maintain their identities.


Berg, Thomas | Permalink


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With all due respect, the rational basis for banning same-sex marriage is grounded in respect for the Dignity of all persons, who, regardless of race or ancestry, have been created in The Image and Likeness of God from the moment of conception, equal in Dignity, while being complementary as a son or daughter, ordered to live our lives in loving relationship in communion with God, not as objects of sexual desire but as husbands, wives, fathers, mothers, sons, daughters, sisters, brothers...

Our right to due process begins with the truth about the inherent essence of the human person.

Posted by: Nancy | Jul 19, 2013 5:52:32 PM

The bargaining situation here seems fairly simple. Whatever religious accommodations are enacted will probably be maintained, given general legislative inertia, the fact that changing them would be highly controversial in either direction, and the fact that the exact place the line is drawn will not affect that many people that much. It follows that people who are interested in strong religious protections should want same-sex marriage to happen when they have the most leverage to push for such protections, leverage that is weakening by the day as political and public support for same-sex marriage climbs. To make matters worse, a political approach of "No same-sex marriage, but if you must have it, add religious protections" encourages the view that bringing up religious protections is a canard to obstruct and undermine same-sex marriage laws, which is a counterproductive perception in a country that is almost certainly going to have nationwide same-sex marriage within a decade or two (if that).

The opposing worry is that a society that has embraced same-sex marriage will find no principled basis to respect religious protections, so they will end up being eroded and ultimately discarded. But I think this view is probably mistaken. You do not have to agree with a conscientiously-held view, or even think such a view is morally respectable, to support a person's right not to act against it. Part of respecting liberty of conscience is respecting it across disagreement, even deep and fundamental moral disagreement.

For what it's worth, I don't agree that the Windsor majority characterizes supporters of DOMA as bigoted. It characterizes DOMA as having the purpose of rendering state-sanctioned same-sex marriages unequal to different-sex marriages, which seems plainly correct (what else does it mean to say that DOMA defends "traditional marriage"?), and points out that this inequality harms and demeans couples in such marriages.

Posted by: JHW | Jul 19, 2013 11:55:16 PM

"...What else does it mean to say that DOMA defends 'traditional marriage'?"
It means that we recognize the self-evident truth about the sanctity of marriage, that marriage by its very essence, is restrictive to begin with, because in order to be married, a couple must be able to exist in relationship as husband and wife.

What the Windsor majority has done by suggesting that in order to be married, it is no longer necessary to exist in relationship as husband and wife, is make it permissible for every relationship to be defined as marriage, thus invalidating the validity of a valid marriage.

Posted by: Nancy | Jul 20, 2013 9:13:24 AM

What does it mean to say that Religious Liberty is our first inherent Right?
Since it is true that only The True God can endow us with our inherent unalienable Rights to begin with, and it is true that The True God does not desire to lead us astray, then the purpose of our inherent Right to Religious Liberty is so that we come to know, Love, and serve The True God in this world, and be with God forever, in Heaven. Love is not possessive, nor is it coercive, nor does it serve to manipulate for the sake of self-gratification. Love is a gift, given freely from the heart, that desires only that which is Good for one's beloved. Everything that is Good, is ordered towards Love. To Love according to The Word of God, is to desire Salvation for ourselves and our beloved.

Posted by: Nancy | Jul 20, 2013 10:14:07 AM

A bigot by one definition is "person who is intolerant of any ideas other than his or her own, esp on religion, politics, or race," but it is more than that. It is one of those words that brings forth a visceral reaction. It is like being called "a liar." Simply lying about something doesn't make you A LIAR.

All discrimination is not "bigotry," particularly often if it is done for mixed motives. There is a certain visceral reaction to the felt belief that people who think opposition to SSM are all a bunch of bigots. The reaction is understandable. But, fwiw, imho, overblown. This has been discussed in past comments.

JHW notes that "this inequality harms and demeans couples." Yes. The ruling:

"This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States."

The House Report also was cited: "both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality" was among the reasons offered. The inapt fit of the law only furthers this. It isn't focused on children (a usual defense, including in an op-ed cited by another post). It benefits same sex couples at times (federal conflict of interest rules not applied), hurts them in others (childless seniors don't have key benefits).

JHW is correct that the effect of the law is to demean same sex couples. It is true that would be enough. But, logic application suggests this demeaning was also expected -- the people who voted on it knew the effect of the law. They voted in the way they did because they felt, and many expressly said so, that same sex couples are not equal to different sex couples. The "host" of reasons have repeatedly been shown to fall apart upon scrutiny w/o some underlining principle that same sex couples are different, they don't deserve the same benefits. DOMA doesn't even offer civil union benefits as an alternative. Its breadth and uniqueness makes it particularly telling.

This "demeans" them. Is it bigotry? Again, I think the word has a certain strength that makes it invalid as applied to many people here. I don't think simple bigotry motivated racial segregation laws. However, it did not demean to explain how Loving v. VA demeans interracial couples. That the "avowed purpose" of the ban was to treat interracial couples differently. The problem really is that some think it isn't "demeaning." They think treating same sex couples differently is correct. But, constitutionally, Lawrence v. Texas determined that the government in some basic way could not act that way.

Posted by: Joe | Jul 21, 2013 11:59:16 AM

ETA: "how" in the final paragraph should be "how the law struck down in."

The eleven page article looks interesting -- I do not wish to re-litigate the religious exemption issue here, but would note that in a case by case approach (see also, the reference in a later post to Roe/Doe), Windsor was not an appropriate case to decide on right to marry grounds. A more narrow argument was possible. It also was "honest." Using Windsor's rational basis with teeth test, which need not just be applied to sexual orientation, DOMA can fall. It also really goes back to the justification of laws and policies in question. But, if the ultimate right result occurs, we can debate means. So, it's appreciated.

Posted by: Joe | Jul 21, 2013 12:16:02 PM

Joe, you cannot debate the truth about the inherent essence of the human person. Assigning personhood to sexual desire does not change the essence of sexual conduct, or the fact that it is not unjust discrimination to discriminate against appropriate sexual conduct that is respectful of thr inherent personal and relational Dignity of the human person, and inappropriate sexual conduct. A bigot is one who engages in unjust discrimination.

Posted by: Nancy | Jul 21, 2013 12:31:55 PM

It doesn't make sense to me to say that intolerance towards people who believe in traditional marriage is partially or fully the fault of opposition to same-sex marriage, so that if such opposition diminished tolerance would increase. On other issues of the sexual agenda, abortion and contraception, pure legalization came first in the midst of nearly universal norms protecting conscience against participation in those things. The Supreme Court imposed legalization of these practices while insisting on conscience protection for dissenters. After Roe the federal government and nearly all states acted in rapid fashion to enact laws protecting against cooperation in abortion. And stalwarts such as the AMA reflexively affirmed conscience protection across the board. Gradually, progressively, and inevitably, the trend of the abortion and contraception agenda has been to cut away at those laws so they could leverage government to force people to participate in, cooperate in, deliver and pay for abortion and contraception for other people. It has never ever been enough for proponents of the radical sexual agenda to simply legalize their practices. There was zero danger of contraception or sterilization becoming illegal in the last fifteen years when states and now Obamacare have moved to make it illegal not to pay for it in other people's insurance.

Posted by: Matt Bowman | Jul 23, 2013 4:08:48 PM

Matt, I agree that it's never been enough for activists to get abortion rights or other legal protection; they push to get others to support or facilitate it. But as I said, the key is not the activists; it's convincing the people in the middle. That includes the center-left: the administration retreated on religious nonprofits and HHS mandate partly because of legal concerns under RFRA (pressure from the right), but partly because they thought they might alienate moderate to moderate-left Catholics whose concerns were given voice by people like Carol Keehan or Chris Matthews. Since same-sex marriage is spreading, the most likely result of continued die-hard opposition to it will be to alienate more and more of those in the middle.

Posted by: Tom Berg | Jul 23, 2013 4:50:46 PM

Joe, thanks for the comments. DOMA "demeaned the marriages" of same-sex couples; it inflicted many harms on them and their children, based on arguments that increasingly became too weak to justify the harms. I think that all that was correct, and important, to say. However, the opinion also said that DOMA rested on a "bare desire to harm" gays, had as its "principal purpose ... to demean those persons," and reflected animus toward them as persons. The latter statements are overbroad, unnecessary, and unlikely to help move us forward in a way that respects sincere and long-standing religious beliefs while also respecting gays' and lesbians' relationships.

I've always assumed that Kennedy used the language of irrationality, "animus," and "bare desire to harm" in Romer and Lawrence to signal an incremental approach: to leave open the possibility that other laws (like traditional-marriage laws) might satisfy rationality review. But now it's pretty clear that the next shoe is going to drop (a general right to same-sex marriage) in a few years. So why not say this is stricter review? (Loving, of course, rested on strict scrutiny of race discrimination.) By now Kennedy's argumentative method seems to insult traditionalists without a strong reason for doing so.

Posted by: Tom Berg | Jul 23, 2013 5:24:47 PM

The "bare desire" language was a quote from an earlier opinion. The next time I found that term was in Roberts' dissent.

After citing Moreno, the opinion spells out the specific issue -- the "strong evidence of a law having the purpose and effect of disapproval of that class." The "too weak" arguments underline that Congress was "demeaning" and had an "animus." Why did they selectively use the "too weak" arguments against same sex couples? There are usually reasons for targeting groups. They are seen as different, not equal. Isn't that what "demeaning" means?

But, when you selectively do so like this, especially when the deemed "immorality" is specifically cited, it is not wrong to call them on it. The "too weak" reasons are often based on "long-standing religious beliefs" in other cases too. The judge in Loving surely quite honestly thought his cite of God separating the races was correct too.

Windsor continues the ongoing "incremental approach" -- it allows a few more years at the very least before the US Supreme Court has to confront this issue again. Why aren't these years important? You say the arguments against SSM are "too weak," but some of your own co-bloggers are strongly supportive of it. They are so "weak" that you support the federal courts to (if politely in your view) restrain public policy. I don't know how much this will make the anti-SSM feel better about things. People tend to care about results here. If we are left with parsing of opinions like this, we are getting into the weeds.

Posted by: Joe | Jul 23, 2013 7:33:21 PM

Tom, at the end of the day the obamacare preventive services mandate is not a retreat or compromise. It falls barely short of the most extreme mandate offered among the states. It was activist driven and accomplished, all during no threat to contraception's legality. If that's your example of what the middle can do to protect believers in traditional marriage, it disproves your point. We had a regime of 100% legal contraception and sterilization, and it did not add equilibrium on the conscience side of the ledger. It added momentum to the mandate-promoting activists, who could tell the middle they were entitled to force others to give them what they forgot used to be illegal. And as you have pointed out, this even led to conscience losses on the early abortion side of the ledger.

Posted by: Matt Bowman | Jul 24, 2013 7:58:31 AM

Tom: I think you also reflexively showed the drift that happens against conscience, in the labels you just used. On SSM, you identify people for and against legalization as the activists, and conscience as the middle view. Move over to contraception, and you labeled the administration's mandate as the position of the activist center-left, RFRA advocates as activists on the right, and the non-profit "accommodations" as the middle view. But the preventive services mandate is entirely a post-legalization conscience issue. The legal position of the RFRA "right" isn't a bid to ban contraception or even early abortion-pills, nor to lift the mandate for most companies. So under your SSM calculus you should be calling their view the middle position (and explaining why it doesn't fit your paradigm). But instead, in the post-legalization world for these items, you picked up the entire spectrum and shifted it to the left, rendering conscience no longer a middle view but an activist position on the right. That's what happens after legalization. Even conscience advocates such as yourself intuitively accept that shift. To the extent SSM is legalized more fully, conscience itself will be called the "RFRA right" even by successors to your outlook. But as I objected to above, that can no more be blamed on SSM opponents than the preventive services mandate can be blamed on people who want to make contraception illegal, since for practical purposes the latter is a null set.

Posted by: Matt Bowman | Jul 24, 2013 11:01:50 AM