Mar 26, 2013

Religious arguments in the legal fights over same-sex marriage

Marriage Equality March 2013
Photo by Jamison Weiser (CC)
A man dressed up in Catholic liturgical regalia protests religious teachings against same-sex
marriage in San Francisco, Monday.
One of the biggest, most contentious issues in the ongoing American culture wars goes to the Supreme Court this week, with oral arguments today and tomorrow in two cases about the constitutionality of legally defining marriage as between a man and a woman.

At Religion and Politics, law professor Calvin Massey offers a preview of the cases:
Hollingsworth v. Perry confronts whether California’s 2008 constitutional amendment to ban same-sex marriage violates the U.S. Constitution, specifically its guarantee of equal protection to all persons under the law. Prop 8 drew a lot of attention during the 2008 election; it was bolstered by a host of religious organizations, notably the Roman Catholic Church, the Church of Jesus Christ of Latter-day Saints, and megachurch pastor Rick Warren. It passed by a 52 to 48 percent margin, receiving more than 7 million “yes” votes. Then two same-sex couples filed suit in federal court to invalidate Prop 8. The trial court voided the amendment and a federal appeals court affirmed that decision on equal protection grounds.

In United States v. Windsor, the plaintiff, Edith Windsor, is an 83-year-old widow who is challenging section 3 of DOMA, also on equal protection grounds. When her spouse Thea Spyer died in 2009, Windsor was not allowed the marital deduction for estate taxes, though she and Spyer legally married in 2007. DOMA, enacted in 1996 under the Clinton administration, makes federal marital benefits available only to married couples of the opposite sex. Because of this, Windsor paid some $350,000 in estate taxes before she sought a refund in federal court. The trial court agreed with her, and the federal appeals court affirmed the ruling; the federal government has appealed to the Supreme Court.
Massey notes that because of the way culture-war conflicts have played out over the last 40 years, some proponents of same-sex marriage are actually hoping for a small victory, rather than a big, dramatic win. If the court strikes down all same-sex marriage bans, that could detrimental to the cause, resulting in lots of backlash and generations of cultural entrenchment, where conservatives use the court's ruling as a rallying cry. It's a fear of a Pyrrhic victory. Massey calls this the "specter of Roe v. Wade":
Roe overturned all state laws prohibiting abortion, and even those that severely regulated but did not outlaw abortions. The result, as Justice Ginsburg noted in her Madison Lecture at NYU Law School, delivered 20 years ago this month, was that the trend in the states toward progressive legalization of abortion was truncated by a sweeping judicial fiat. Had the Court confined itself to striking down the Texas law at issue in Roe, without addressing the validity of other states’ laws, there would have been room for further evolution of abortion laws in the states. Instead, Roe closed the door of legislative change and brought about a 40-year battle of high emotions, even violence, and stubborn opposition to Roe and its progeny. 
When people feel that they have lost in an open and democratic debate, they may not like it but will usually accept the popular verdict. But when people feel that their voice has been ignored by a process in which they have no input, they are apt to resist the result as an illegitimate usurpation of democratic institutions
National Public Radio has a piece on a Pentecostal church in El Paso where many people would likely respond to a clear legal victory for same-sex marriage in just this way. That church has -- like a number of conservative Christian groups -- been politically active on what NPR dramatically calls "one of the battlegrounds in the gathering war over gay marriage." It's not a great news story. There are more than a few problematic framing issues typical of accounts of "culture war." But the story does give space to the views of some of those religious people in America who are deeply opposed to same-sex marriage, and worried about what the court might decide in June. One of the main fears is that a sweeping ruling will, by judicial fiat, etc., basically rule religiously informed arguments against same-sex marriage unconstitutional.

This is one of the many legal arguments that religious groups are officially making in these two cases, which can be found in the nearly 100 amici filed with the Supreme Court, where various groups not directly involved in the dispute offer their input in legal briefs.

In Hollingsworth v. Perry, there are at least two dozen such briefs from religious organizations. A survey of some of the arguments those organizations are making in favor of the right of the State of California to legally define "marriage" as only involving opposite-sex couples shows the variety of religious arguments that are being made. Some are familiar, some innovative.

A sampling:
  • The National Association of Evangelicals, The Ethics and Religious Liberty Commission of the Southern Baptist Convention, The Church of Jesus Christ of Latter-day Saints, and the Missouri-Synod Lutherans jointly argue the lower court's ruling that overturned the voter-approved definition of marriage was "a misguided incursion into this democratic debate," mis-applying legal precedent, and declaring "in the name of the Constitution that religious understandings are irrational and illegitimate, even when coupled with nonreligious judgements."
  • The Conference of Catholic Bishops argues that legally defining marriage as being between a man and a women is "rationally related to legitimate state interests," because of opposite-sex couples potential to procreate and because children are better off when raised with a father and a mother. The bishops write "as a matter of simple biology, the union of one man and one woman is the only union capable of creating new life [and] the People of California could reasonably conclude that a home with a mother and a father is the optimal environment for raising children." They further make the case if religious and moral considerations are involved in enacting such a ban, that doesn't make it constitutionally invalid, since "Many, if not most, of the significant social and political movements in our Nation’s history were based on precisely such considerations. Moreover, the argument to redefine marriage to include the union of persons of the same sex is similarly based on a combination of religious and moral considerations (albeit ones that are, in our view, flawed)."
  • The Coalition of African American Pastors USA and others argue that the historic ruling striking down state bans on inter-racial marriage cannot be used to strike down bans on same-sex marriage. They write "the anti-miscegenation statutes in Virginia were at war with the core purposes of marriage -- especially the fostering of responsible procreation and child rearing by biological parents -- because those Virginia statutes prevented children from being raised in the optimal setting: a family headed by married biological parents" (emphases original). According to this group, the present movement to legalize same-sex marriage is analogous to historic efforts to ban inter-racial marriage, since both seek to radically redefine marriage for the sake of "extraneous" social policies. 
  • The Foundation for Moral Law makes the argument that "the Framers of the Constitution would be shocked to see their document twisted to protect something they regarded as abhorrent" and that "marriage is not simply an individual right, but rather it is a divinely-established institution that is as old as if not older than civil government."
  • Catholics for the Common Good (a lay-led organization from California) argues that legally defining marriage as necessarily involving opposite-sex couples is not discriminatory, but based on reasonable judgements about the biological differences between men and women. The claim is made that "there is a vast body of credible, scientific evidence that supports the California voters’ choice to differentiate the nomenclature to be assigned to male-female pairs (marriage) and single-sex pairs (domestic partnership)." They argue it must be permissible for states "to construct public policies that assume that there is a real difference between men and women; between mothers and fathers; between boys and girls; and between male-female sexual relationships, and those of same-sex couples."
  • Family Research Council -- once the political arm of Focus on the Family, though now independent -- offers what they call "alternative grounds" on which same-sex marriage can be rightly, legally banned. One argument the group makes is that "the fundamental right to marry that has been recognized by this Court is limited, by the nature of marriage itself, to opposite-sex couples." Another argument offered is that the state's definition of marriage did not discriminate against anyone, since all men and women, even homosexual men and women, have the right to marry someone of the opposite sex. 
  • Patrick Henry College makes the argument that legal definitions of marriage are necessarily about morality, and not allowing the people of a state to ban same-sex marriage means coercing them to morally sanction same-sex marriage. The college writes: "The definition of marriage [...] is a quintessentially moral determination, for it encompasses the question of what marriage ought to be. Since this case (like any case dealing with polygamy or incest) is about the meaning of marriage, rather than access to it on equal terms, each side is asking the state for moral sanction through the designation, 'marriage.'"
There are also a number of religious organizations that have filed amici in favor of striking down California's ban on same sex marriage. One has the backing of 18 different groups, most of which are mainline Protestant or Jewish. These include the Episcopal Church, the United Church of Christ, several Lutheran groups, several Presbyterian groups, the Unitarian Universalist Association, and a Quaker group, as well as the Union of Reform Judaism, the Rabbinical Assembly, the Reconstructionist Rabbinical Association, the United Synagogue of Conservative Judaism, and others. In their brief, these groups emphasize the breadth and diversity of support for same-sex marriage among religious groups, and make an argument from American religious pluralism. They claim that "permitting same-sex couples to marry will not impinge on religious beliefs, practices, or operations, but rather will prevent one set of religious beliefs from being imposed through civil law." Another such brief has been filed by a number of California-based religious organizations who say they oppose legally defining marriage as between a man and a woman because that would be "governmental discrimination turning on whether a committed couple's union accords with liturgical doctrines."

There is a slightly smaller number of legal briefs from religious groups filed in the second case, United States v. Windsor. Some of the groups involved are the same, though there are also others. In these briefs, those arguing for a federal law -- the Defense of Marriage Act (DOMA) -- defining marriage as being between a man and a woman turn their attention to questions of discrimination, and whether or not such a law discriminates against homosexuals. There are also assorted other arguments that are made. A survey of some of the religious organizations' arguments:
  • The National Association of Evangelicals, et al., make a technical argument about how "suspect classes" should be determined in questions of violation of Equal Protection, and argue, more generally, that religious groups "have just as much right as anyone else to have our views considered by democratic decision makers. But that cannot properly occur if the great marriage debate is removed from our democratic institutions and decided by the judiciary under a heightened standard of review."
  • The Family Research Counsel writes that DOMA "on its face, does not discriminate between heterosexuals and homosexuals, but between opposite-sex married couples and same-sex married couple," and repeats many of the arguments made in Hollingsworth v. Perry.
  • The Catholic bishops argue DOMA's definition of marriage is not a problem because it does not deny anyone a "fundamental right," since there is no fundamental right to same-sex marriage. According to the bishops, "civil recognition of same-sex relationships is not deeply rooted in the Nation’s history and tradition—quite the opposite is true. Nor can the treatment of such relationships as marriages be said to be implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed."
  • The Manhattan Declaration, Inc. -- the movement with a manifesto with more than 500,000 signatures of Catholic, evangelical and Orthodox Christians who believe "the male-female nature of marriage to be an essential Christian teaching" -- argues for the universality of the DOMA definition of marriage, and that it has nothing to do with animus towards homosexuals. A religious liberty argument is also made. The group writes:  "Marriage is a foundational institution universally known and accepted, without regard to the accidents of time and place, as a male-female coupling" and "redefining marriage imperils religious liberty and oftentimes requires that freedom of conscience be sacrificed to the newly regnant orthodoxy." Striking down the federal law defining marriage as between a man and a woman would, according to Manhattan Declaration, "constitutionalize" same-sex marriage.
  • Robert P. George, who helped found the Manhattan Declaration, Inc., and has been at the forefront of natural law arguments against same-sex marriage, argues that the question for the court to decide is not the definition of marriage, but only "whether citizens and legislators may embody in law the belief in marriage as a conjugal union, as they have historically done." He further argues that it is rational and practical for those citizens and legislators to define marriage as necessarily involving opposite-sex couples (implying it is not just a religious judgement and therefore should be allowed).
  • The Chaplain Alliance for Religious Liberty argues similarly, making the case that striking the opposite-sex marriage provision from DOMA would mean that "service members who adhere to traditional religious beliefs on marriage and family will likely be penalized and marginalized, and the chaplaincy’s efforts to protect religious liberty will face severe conflicts."
  • Concerned Women for America -- the group Beverly LeHaye founded -- writes that homosexuals should not be a class protected against discrimination because, as a group, they're politically powerful, having "repeatedly demonstrated their ability to influence public policy through democratic means. And their influence is only increasing. Their causes are supported by the mainstream media, popular culture, big labor, and big business." The group also makes the argument that in this case, one of the key questions at stake is who defines marriage, in addition to how marriage is defined. The group argues that the decision should be made democratically, i.e., not by the courts.
There only seem to be two amici from religious groups opposing DOMA's definition of marriage in United States v. Windsor. As in Hollingsworth v. Perry, there's one brief with a large number of socially left-leaning religious groups signed onto it. These groups have chosen a strategy that's quite different than the right-leaning groups 21-guns approach. In that brief, filed by the Episcopal church of the 10 states and the District of Columbia where same-sex marriage has been legalized, six Reform and Conservative Jewish groups, the Unitarian Universalists, the United Church of Christ, and several Lutheran, Presbyterian and Methodist groups, the arguments made in the amicus in the other case are substantially repeated. They repeat the point that there is no one religious position on same-sex marriage and that a particular religious doctrine about marriage should not be given the backing of federal law. 

What import these various arguments will have in the cases before the Supreme Court remains to be seen. What is notable about these arguments from religious groups is how secular they are. They're secular in the sense that they're grounded in this-worldly justifications, arguments which are, in principle, accessible to all. These are arguments about social good, arguments that could mostly be proven or proven false with data. The cases being made mostly do not involve arguments from revelation, or religious authority, or any claims that necessarily entail any theistic ontology.

Steve Bruce has argued the rise of the religious right as a political force is evidence for secularization even in America for exactly this reason. He writes:
Critics of the secularization paradigm sometimes point to the Christian Right as evidence that social differentiation has not marginalized religion. I draw the opposite conclusion from the same data .... Christian Right organizations now present their causes in secular language .... They cannot assert that God dislikes divorce [e.g.]. They have to argue that divorce is socially dysfunctional. 
This is important, because the culture war that's fought around such issues as these Supreme Court cases is often understood -- especially by those involved -- as a pitched battle between secular and religious forces. Religious people and organizations that are politically active on the right regularly express the fear that secularists are attempting to effectively disenfranchise them, push them out of the public sphere. That's certainly the fear expressed by the pastor of the Pentecostal church in El Paso, profiled by NPR. It's an issue raised by many of the religious groups that have filed amici in these legal cases. Court rulings tend to aggravate that feeling of disenfranchisement, which is why some advocates of same-sex marriage (such as Andrew Sullivan) prefer the issue not be settle by the courts. And why some observers think conservatives stand to gain by losing these cases in court.

But, here, the religious forces are secular forces.

The main "religious" arguments being made for the legal definition of marriage as only being between opposite-sex couples is not religious, in any meaningful way. The counter argument being made, likewise, is not that these arguments should be disallowed because they are religious. Ted Olson, for example, the lawyer advocating for homosexuals' right to get married in the Hollingsworth v. Perry case, responds to the religious right's secular arguments with secular counter-arguments, saying that each fails only because it fails to prove what it sets out to prove, which is that it is in the state's interest to bar homosexuals from the legal benefits and protections of the institution of civil marriage.

As NPR reports:
Olson replies that none of the offered justifications for Proposition 8 hold water -- not family, not kids, not the institution of marriage. No one, he says, has come up with any reason why same-sex marriage 'damages heterosexual marriages in any way.' 
Ultimately, he says, it is no justification to say the country has been doing something for hundreds of years, if it flies in the face of the constitutional guarantee of equal protection of the law.
There are many like the Reformed theologian Peter Leithart, who worry that Christian arguments against same-sex marriage are barred from the public debate, and that even if they were allowed, they'd be underwhelming. Religiously informed arguments would be ineffectual and unpersuasive. "It will take," he recently wrote, "nothing short of a cultural revolution for biblical arguments to be heard, much less to become persuasive." This is because, for Leithart, it seems that "the only arguments we have are theological ones, and only people whose imaginations are formed by Scripture will find them cogent."

In these two Supreme Court cases, though, it is apparent that theological arguments aren't the only ones. Whether or not the non-theological arguments are any more cogent and persuasive to the general public is another question.

It's that question that has bubbled up in an intra-religious conservative dispute about the usefulness of the idea of natural law. The ideas of natural law underly many of the arguments religious groups are making in the legal briefs in these two cases: that there is a natural and right order that can be determined by rational thought and ought to be adhered to for the sake of human flourishing.

As Hugo Grotius pointed out, a key aspect of natural law is that it depends on reason alone, and holds "etsi Deus non daretur," even if God is not a given. Which is to say, it is secular.

The natural law arguments against same-sex marriage that are being made and have been made are secular, and thus at least theoretically reasonable and effectual in public debates in a pluralistic society. This is why the theory of natural law was embraced so wholeheartedly by conservative Christian groups seeking to have a political impact on American culture. As Brad Littlejohn explains:
With the ascendancy of the Moral Majority, conservative Christians found themselves catapulted into the public square, and the more sophisticated were conscious that a raw and undiluted biblicism was not going to get them very far in public debates. Finding themselves shoulder-to-shoulder with Catholic co-belligerents in the culture wars, evangelicals glanced over at the popish playbook and thought natural law looked like a pretty promising notion. Accordingly, they took up the idea with gusto.  
But now, scarcely a decade into this revolution [....] finding that natural law arguments are gaining them no traction in the current debate, evangelicals, and indeed many within the whole cobbled-together conservative coalition, were already wavering and considering withdrawal.
The wavering can be explained by the fact that natural law theory was picked up, by and large, because of the promise it would be a powerful tool. Conservative religious people involved in political activism may believe in natural law, but there's a strong instrumentality to that belief. Where strictly religious and theological arguments (built on biblicist or presuppositional epistemologies) had failed, those grounded this way, in reason -- commonly accessible, public reason -- would succeed. That was the promise. And yet they haven't, or at least not enough. The swing in public opinion on the topic of same-sex marriage has been shocking. Arguments about natural order have had little strength, where the testimonies about the public good of gay marriage have been both affective and effective.

The images of long-committed same-sex couples getting married have seemed to growing portions of the public to speak much more clearly about the common good, and much more persuasively about the kind of society that American citizens want to live in.

The natural law arguments against same-sex marriage have been so unpersuasive, it seems that the only way to continue to hold them is by way of giving up on the debate. To quote Littlejohn again, "We seem to be back in a situation where we must simply give up on the rest of 'irrational' society and retreat to our strongholds, or else aggressively assert the superiority of our own reasoning and call upon our opponents to subject their reasons to the yoke of Christ."

These are the religious arguments that have gone to the Supreme Court, though. Perhaps in that context things will be different. Or, perhaps the sun is setting on these particular religio-political arguments.