Liberty and Justice for All
Tom Carter November/December 2016It’s been said that “the Constitution amounts to a prescription for political struggle and an invitation for an ongoing debate about enduring constitutional principles.”1 Never has this been truer than in the intense debate over same-sex marriage. The first round was noneventful, but lately the topic has exploded with activity:
ROUND ONE (1776-1992):
First same-sex marriage case—Baker v. Nelson, 409 U.S. 810 (1972)—was dismissed. Not another case was brought for 20 years.
ROUND TWO (1993-2011):
The first court to see a valid constitutional question for same-sex marriage came in with Baehr v. Lewin.2 November 2003: the Supreme Court of Massachusetts ruled a ban on same-sex marriage unconstitutional, paving the way for same-sex marriage. Connecticut, Maine, New Hampshire, the District of Columbia, and Vermont followed in 2009. New York adopted same-sex marriages in 2011. 3
Congress passed the Defense of Marriage Act (DOMA), signed by President Bill Clinton in 1996. California voters in 2008 approved Proposition 8, temporarily stopping court-ordered same-sex marriages. Thirty-one states had constitutional bans on same-sex marriages. 4
ROUND THREE (2012-2015):
The U.S. Supreme Court, by a 5-4 decision, gave same-sex marriage advocates three major victories. In 2012 the Ninth U.S. Circuit Court of Appeals upheld the district court’s decision that California’s Proposition 8 was unconstitutional.5 On June 26, 2013, the Supreme Court struck down the federal Defense of Marriage Act (DOMA).6 By 2015 federal courts had struck down bans on same-sex marriage in the majority of states. 7
Two years after the above casesthe Supreme Court in Obergefell v. Hodges, 576 U.S. ___ (2015), issued the landmark United States Supreme Court decision in which the Court held 5-4 that the fundamental right to marry is guaranteed to same-sex couples by both the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution.
ROUND FOUR
Is the debate over? Hardly. Both the majority and minority opinions of the Supreme Court indicate the future battleground: Will religion, society, and individuals be forced to recognize same-sex marriage as a matter of public policy or suffer penalties?
Chief Justice John Roberts in his dissent points out the hard questions yet to be answered: “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.” (See transcript of oral argument on question 1, at pp. 36-38 [italics originals].) There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. 8
BALANCING THE INTERESTS
How should the rights of same-sex marriage and religious rights be balanced? Paul G. Kauper, law professor at the University of Michigan for 38 years and constitutional law specialist, states: “No definite rules can be prescribed respecting permissible restrictions on religious liberty and . . . the court arrives at a decision by the pragmatic process of examining the burdens placed on that liberty and the nature and importance of the countervailing public interests that are advanced to justify the restriction. The appraisal and balancing of these conflicting interests is a function of the judicial process, and the end result is a matter of subjective judgment. 9
Religious liberty rights and same-sex marriage rights must be weighed against each other. The Supreme Court has ruled avoiding racial discrimination in education. Therefore same-sex marriage rights have to be compared to the 150-year legal history and stare decisis of racial discrimination.
RELIGIOUS LIBERTY RIGHTS
For centuries church and state were combined, resulting in persecution for minority religions. A no-holds-barred struggle took place over which would be the established religion. A new concept was established by the U.S. Constitution. The First Amendment reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The first principle was that no church or group of churches become the established religion. Nor was “atheistic or agnostic philosophy” to become the established belief. Instead, government and religion would flourish best by being separate, with neither controlling the rightful sphere of the other. The “free exercise of religion” was to be our first and most important right.
Marriage is a unique institution with both civil and religious rights and responsibilities. The commitment made is considered sacred in most religious communities. In changing the definition of marriage, some want to change basic Judeo-Christian beliefs. For example, John Spong, Episcopal bishop of Newark, New Jersey, has said, “The fact remains that these so-called laws of God, which God was supposed to have written on tablets of stone, or the excessive claims made for Holy Scripture in general, which involve the assertion that the Bible is somehow ‘the inerrant word of God,’ are today indefensible, regardless of who utters those claims or any variation on them.”10
While many same-sex couples want a marriage similar to a traditional marriage, other homosexuals do not. Law professor Nancy D. Polikoff states, “The desire to marry in the lesbian and gay community is an attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic institution that betrays the promise of both lesbian and gay liberation and radical feminism.” 11
The majority in Obergefell recognized the enduring nature of one man, one woman marriages: “The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life.”12 Then the bare majority go on to redefine public policy so that gender must be deleted from the definition of marriage. How far can the new public policy override religious freedom? The Yoder case ( Wisconsin v. Yoder) said: “Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”13 Many cases and the Religious Freedom Restoration Act (RFRA) recognize the importance of preserving freedom of religion and making reasonable accommodation.
RIGHTS AGAINST RACIAL DISCRIMINATION
Same-sex marriage and racial discrimination were compared in Obergefell. Justice Anthony Kennedy said that denial of either interracial marriage or same-sex marriage deprived “one of the vital personal rights essential to the orderly pursuit of happiness by free men.”14
Chief Justice Roberts drew a sharp contrast between the Loving case (Loving v. Virginia) and Obergefell: “Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of ‘marriage’ discussed in every one of these cases ‘presumed a relationship involving opposite-sex partners.’”15
Justice Samuel Alito added in dissent: “[This case] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African Americans and women.” 16
Same-sex marriage rights differ from
the long history of racial discrimination.
Justice Alito stated: “It is beyond dispute that the right to same-sex marriage is not deeply rooted in this nation’s history and tradition. In this country, no state permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the state constitution.” 17
The U.S. History of Racial Discrimination
After the Civil War three constitutional amendments were passed, including the abolition of slavery, having privileges and immunities of citizenship, due process and equal protection of laws, and voting rights.
Congress considered additional measures necessary, passing the 1866, 1870, 1871, and 1875 acts to combat racial discrimination.
Courts restricted racial rights: “It is a matter of well-documented history that civil rights legislation passed shortly after the Civil War to combat ‘Black Codes’. . . was, for the most part, strictly construed through a series of cases which all but eradicated the original congressional intent.” 18
The Supreme Court endorsed segregation with inconsistent rationales. Plessy v. Ferguson in 1896 upheld segregation because it accorded with the “established usages, customs and traditions of the people.” In 1908 in Berea College v. Kentucky 19 the Supreme Court upheld the forcing of college students to separate. Justice John M. Harlan was the lone dissenter in both Plessy and Berea College.
The Supreme Court in a 9-0 decision reversed its separate-but-equal doctrine: Brown v. Board of Education, 347 U. S. 74 S. Ct. 686 (1954), stated: “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Ten years later the 1964 Civil Rights Act was passed.
Tax-exempt Status and Private and Religious Schools That Racially Discriminate
Racial discrimination in education became one of those interests “of the highest order” that trumped even freedom of religion. The cost of the Civil War and the three constitutional amendments thereafter gave the courts grounds to deny tax exemption to racially segregated schools in the Green v. Connally (1971): “There is a compelling as well as a reasonable government interest in the interdiction of racial discrimination which stands on highest constitutional ground, taking into account the provisions and penumbra of the amendments passed in the wake of the Civil War. That government interest is dominant over other constitutional interests to the extent that there is complete and unavoidable conflict.” 20
The Bob Jones case (Bob Jones University v. United States) withdrew the tax-exempt status of that Christian college. In a footnote the Court said, “We deal here only with religious schools—not with churches or other purely religious institutions.”21 So churches should be allowed to make their own decisions on same-sex weddings and membership.
But the rationale of Bob Jones is troubling: “An institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy.”22 The 1983 Supreme Court Review of the University of Chicago Law School stated: “There were satisfactory reasons for allowing the Bob Jones University tax exemption to be withdrawn. But these were not the Supreme Court’s reasons. It had others that will not withstand scrutiny and that will haunt and discomfit future cases.”23 Bob Jones should not be read as indicating that every public policy trumps religious freedom, but as Yoder stated: “Only those interests of the highest order and those not otherwise served.”
Same–Sex Marriage Rights
Putting the issue of Round Four into focus: Is Same-Sex Marriage one of those “interests of the highest order” that can overbalance religious freedom rights? The majority states: “The right to marry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty.24
Chief Justice Roberts in dissent does not see any such right or interest: “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.” 25 What a difference in this 5-4 decision and the 9-0 decision of Brown. Brown’s reversal of segregation in schools had the solid footing of three constitutional amendments, and the congressional laws of 1866, 1870, 1871, and 1875, all specifically aimed at racial discrimination.
Solicitor General Donald B. Verrilli, Jr.’s statement on removing tax-exempt status is of real concern: “It’s certainly going to be an issue. I don’t deny that.”26 Not much more assuring is Internal Revenue Commissioner John Koskinen’s statement at a senate hearing that the IRS would not pursue removing tax-exempt now, but would reevaluate it if public policy changed.27
CONCLUSION
An all-or-nothing approach by either traditional family values or same-sex advocates would seem to be counterproductive at this point. Same-sex couples have achieved the right to marry. But churches and their institutions also have rights. They should be able to set their own rules consistent with their beliefs and conscience unless it is a public policy “interest of the highest order and those not otherwise served.” Where individual conscience is involved, reasonable accommodation should be explored.
Demeaning terms that do not convey equal worth of all persons should be eliminated. However we might identify ourselves, if we are in a minority environment, we are all subject to mistreatment. It is worth noting that the Holocaust, which targeted Jews, also affected homosexuals.28
It is on the proper balancing of interests that our freedoms are maintained. As Christians, we remember that our founder, Jesus Christ, was crucified on the improper balancing of interests: “It is more to your interest that one man [Christ] should die for the people, than that the whole nation should be destroyed.” 29
1 D. M. O’Brien, Constitutional Law and Politics, 2nd ed. (New York: Norton, 1995), p. 25.
2 See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), after remand Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), 950 P.2d 1234 (1997).
3 ”Same-Sex Marriage Laws,” www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx
4 https://en.wikipedia.org/wiki/List_of_former_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type
5 See Hollingsworth et al. v. Perry et al. certiorari to the U.S. Court of Appeals for the Ninth Circuit, No. 12-144.
6 United States v. Windsor, 133 S.Ct. 2675 (2013)
7 ”Same-Sex Marriage Laws,” p. 2.
8 576 U.S.____(2015) (slip opinion, C.J. Roberts dissenting, at pp. 27, 28).
9 Paul G. Kauper, Religion and the Constitution (Baton Rouge La.: Louisiana State University Press, 1964), p. 43.
10 J. S. Spong, Why Christianity Must Change or Die: A Bishop Speaks to Believers in Exile (New York: Harper San Francis-co, 1999), p. 158.
11 Nancy D. Polikoff, “We Will Get What We Ask For: Legalizing Gay and Lesbian Marriage Will Not Dismantle the Legal Structure of Gender in Every Marriage,” 79 Va. L. Rev. 1535, 1536 (1993).
12 576 U.S. ____(2015) (slip opinion at p. 3).
13 Wisconsin v. Yoder, 92 S.Ct. 1526, p. 406 U. S. 205 (1972).
14 576 U.S. ____(2015) (slip opinion at p. 11).
15 576 U.S. ____(2015) (slip opinion, C.J. Roberts dissenting, at p. 16).
16 576 U.S.____(2015) (slip opinion, j. Alito dissenting, at p. 6).
17 570 U. S.____(2013) (slip opinion, J. Alito dissenting, at p. 7).
18 Egan v. City of Aurora, 174 F Supp. 794, 797 (N.F. III, 1959), aff’d 275 F. 2nd 377 (7th Cir. 1960).
19 Berea College v. Kentucky, 211 U.S. 45 (1908).
20 Green v. Connally, 330 F. Supp. 1150 (1971). Affirmed by the United States Supreme Court No. 71-425, Dec. 20, 1971.
21 103 S.Ct.2017, at 2035, footnote 29.
22 Ibid., at 2626.
23 Mayer G. Freed and Daniel D. Polsby, “Race, Religion, and Public Policy: Bob Jones University v. United States,” Su-preme Court Review (University of Chicago Press, 1983), p. 31.
24 576 U.S. ____(2015) (slip opinion at p. 22).
25 Ibid., C. J. Roberts dissenting, at p. 29.
26 Sarah Pulliam Bailey, in Washington Post, Apr. 28, 2015.
27 CBNNews.com, July 31, 2016.
28 https://en.wikipedia.org/wiki/Persecution_of_homosexuals_in_Nazi_Germany_and_the_Holocaust
29 John 11:50, NEB. Bible texts credited to NEB are from The New English Bible. © The Delegates of the Oxford University Press and the Syndics of the Cambridge University Press 1961, 1970. Reprinted by permission.