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."
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