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November/December 2013

Discover more articles from this issue.

Beyond the 10/40 Window

Whenever religious freedom in the world is discussed today, it is hard to avoid the lack of freedom in the so-called 10/40 window world.


The historical and religious legacy of the Salem witch trials in America.

What Is This Great Sin?

Blasphemy is represented a horrible sin, but what is it?

Pakistan’s Blasphemy Laws

How an 1880s religious movement in the Punjab incited the end of religious freedom in 1970s Pakistan and changed the constitution.

Killing Words

In far too many countries blasphemy is illegal, and the consequences are often severe.

Condemned by Phone

The wrong way to implement a blasphemy law.

Courting Controversy

The Windsor and Perry cases and their impact on religious liberty.

Marriage Proceedings

Making sense of Supreme Court rulings on same-sex marriage.

Magazine Archive »

Published in the November/December 2013 Magazine
by Alan E. Brownstein

In late June, at the end of its term, the Supreme Court decided two cases, each by a 5-4 vote, involving constitutional challenges to government refusals to recognize same-sex marriages. In United States v. Windsor, the Court struck down the provision of the Defense of Marriage Act (DOMA), which stated that for all federal law purposes, marriage means only a legal union between one man and one woman as husband and wife. Thus, after Windsor, the federal government at the very least cannot deny federal benefits to a spouse whose marriage is recognized as lawful by the state in which the couple resides. In Hollingsworth v. Perry, the Court held that the official proponents

(the “sponsors”) of Proposition 8, the state constitutional amendment in California banning same-sex marriages, did not have standing to appeal the federal district court’s order holding Proposition 8 to be unconstitutional. Accordingly, neither the Ninth Circuit Court of Appeals nor the Supreme Court had jurisdiction to hear the sponsors’ defense of Proposition 8 and adjudicate the merits of their arguments.

Justice Anthony Kennedy’s majority opinion in Windsor ignored traditional equal protection and due process doctrine and employed an unorthodox analysis to justify its conclusion. Kennedy never addresses the question of whether gays and lesbians are a suspect or quasi-suspect class. He never mentions the right to marry. He never even identifies the standard of review that he applies in this case.

Plaintiffs Stier and Perry at the Pride Parade in San Francisco after their marriage

Instead, in what appears to be a compromise opinion reflecting both the substantive understanding that all laws banning same-sex marriage violate evolving equal protection and due process values and the prudential concern that the Court should not move too fast and place itself too far in front of the political culture of our society on this controversial issue, Kennedy looks to both federalism and equality principles to support his argument that DOMA is unconstitutional.

Justice Kennedy emphasizes that defining marriage is one of the foundational powers of state sovereignty and has traditionally been decided as a matter of state, not federal law. Moreover, when a state decides to expand the meaning of marriage, as New York had done in this case, it is exercising its core sovereign powers to guarantee the class of same-sex married couples “a dignity and status of immense [importance].” DOMA directly undermines the state’s goal in recognizing same-sex marriages. As Kennedy puts it, “DOMA seeks to injure the very class New York seeks to protect.”

However, Justice Kennedy also insists DOMA is unconstitutional not because it involves the federal government impermissibly intruding into state sovereignty, but rather because it violates basic due process and equal protection principles that prohibit the government from adopting laws for the bare purpose of demeaning or harming a particular class. And that is how Kennedy characterizes the motives of DOMA’s supporters. DOMA was a law whose sole purpose was to demean and materially burden the class of same-sex couples lawfully married under state law.

The Perry case is a more technical decision about who has standing to litigate cases in federal court. None of the elected state officials named as defendants in Perry were willing to defend the constitutionality of Proposition 8 in federal court or to appeal the district court’s judgment that Proposition 8 was unconstitutional. Accordingly, the sponsors of Proposition 8 took on this responsibility. The Supreme Court ruled, however, that the sponsors lacked standing to appeal the lower court’s judgment. The sponsors lacked a particularized injury that distinguished them from any other person in California who had campaigned for Proposition 8, supported the measure financially, or voted for its adoption. Further, they could not assert standing as the representatives of California because they were not the actual agents of the state in any meaningful sense.

What are the implications of the Windsor and Perry decisions for religious liberty? As a matter of law, the holdings of these cases will have little immediate impact on the religious liberty of individuals and institutions. The striking down of DOMA will result in incredibly important benefits for same-sex married couples, but it will not alter the legal landscape in a way that directly undermines religious freedom. Many of the potential conflicts between state recognition of same-sex marriages and religious freedom that commentators identify as serious concerns involve state anti-discrimination laws and regulatory policies, not federal statutes and regulations. Moreover, the federal government is still subject to the Religious Freedom Restoration Act, which requires it to justify federal actions that substantially burden religious exercise under rigorous judicial review.

As to Perry, California is currently issuing marriage licenses to same-sex couples under the federal district court’s order (although the sponsors of Proposition 8 and at least one county clerk have challenged the scope of the injunction before the California Supreme Court). However, thousands of same-sex couples in California were already married before Proposition 8 went into effect, and those marriages are recognized as lawful and valid. Accordingly, the potential for conflict between state-recognized same-sex marriages and religious practice and belief already existed in California before the Perry litigation began. The fact that same-sex couples can be married in California now and in the future may increase the number of such conflicts, but it is difficult to predict the extent to which new disputes will arise.

From a purely legal perspective, the impact of Windsor as Supreme Court precedent controlling lower court cases is likely to be limited. It is not at all clear that lower courts will read the Windsor decision as requiring them to strike down state laws banning same-sex marriage. The federalism analysis in Justice Kennedy’s opinion is simply too long and forceful to be ignored. States that ban same-sex marriage will continue to be allowed to enforce their definition of marriage, particularly if they articulate their reasons for limiting marriage to one man and one woman in terms that defuse suspicions of animus. Some courts, however, may cite Windsor to strike down a state’s decision not to recognize the validity of same-sex marriages performed in other states.

More broadly, the invalidation of DOMA may have important political ramifications in those states that recognize civil unions between same-sex couples but not same-sex marriages. The argument that denying same-sex couples the right to marry while restricting their status to civil unions being simply a dispute about terminology and labels that has nothing to do with material rights and benefits is no longer available. With the demise of DOMA, states limiting the legal status of same-sex couples to civil unions will be denying their gay and lesbian residents all of the benefits provided to married couples by federal law.

The cultural impact of Justice Kennedy’s opinion in Windsor is harder to evaluate. There is often a dialectical relationship between Supreme Court decisions and public opinion. On the one hand, political culture influences the Court. The Court is often unwilling to move too far out in front of political and cultural norms. (This seems to have been the case in Windsor.) On the other hand, however, Supreme Court opinions may influence the polity’s understanding of, and attitudes toward, controversial issues.

In his opinion in Windsor, Justice Kennedy impugns the motives and goals of the legislators who enacted DOMA and their supporters. DOMA was “motivated by an improper animus or purpose.” Its “avowed purpose and practical effect [was] to impose a disadvantage, a separate status, and so a stigma upon . . . same-sex marriages.” DOMA’s “demonstrated purpose [was] to ensure that . . . same-sex marriages . . . will be treated as second-class marriages.” “The principal purpose and the necessary effect [of DOMA] are to demean those persons who are in a lawful same-sex marriage.” “The purpose and effect [of DOMA is] to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

Justice Anonin Scalia protests in his dissent that Justice Kennedy falsely and pejoratively describes the supporters of DOMA as “enemies of the human race,” enemies “of human decency,” or “monsters” who adhere to a “hate your neighbor” belief system. Justice Scalia’s comments are rhetorical overkill, but he is certainly correct that Justice Kennedy’s characterizes the motives of DOMA’s supporters as deliberately demeaning and hurtful.

The concern here is that if the polity is influenced by Justice Kennedy’s depiction of opponents of same-sex marriage as people who are motivated by animus and a bare desire to demean, disparage, and harm others, it will be difficult to argue that religious individuals and institutions opposing same-sex marriages deserve even minimal respect and protection for their views.

There is something of a constitutional irony here. If Justice Kennedy had written an orthodox equal protection opinion striking down bans on same-sex marriage, the negative characterization of those who support such bans could have been mitigated if not entirely avoided. Under a conventional analysis, gays and lesbians would have been identified as a suspect or quasi-suspect class. Laws that discriminate against such classes are subject to heightened review, and DOMA could not withstand such rigorous scrutiny.

The reason laws that discriminate against a suspect class receive rigorous review is that the court does not trust the political process when historically victimized, politically weak classes defined by immutable (or almost immutable) characteristics are singled out for unfavorable treatment. This mistrust, however, is not predicated on the presumption that the political majority is comprised of monsters consumed by hatred and animus.

Equal protection doctrine recognizes that habitual stereotypes and fears may influence the behavior of ordinary and good people. The majority may be influenced by longstanding and widely accepted prejudices that have little grounding in fact but a long historical pedigree. This doctrinal framework isn’t predicated on the idea that most people are malevolently motivated by the desire to harm others. It is grounded in the reality that because of stereotypes and prejudice, otherwise good people will enact laws that unjustly harm others often without realizing the unfairness of their decisions or the injuries that they are causing.

Irony aside, it is not hard to see why many religious opponents of states recognizing same-sex marriages will feel that they are unjustly characterized by Justice Kennedy’s opinion. Similarly, one can understand their concern that the depiction of their motive as animus and their intent as a desire to demean will undermine arguments for the accommodation of religious objectors to same-sex marriage. Whether Justice Kennedy’s opinion will have any such effect is difficult to predict. My anecdotal intuition is that neither its reasoning nor its holding has altered the polity’s understanding of the same-sex marriage debate to any measurable extent. Rather than influencing public attitudes, the holding of Windsor might be better understood as a reflection of the political culture’s evolving attitude toward same-sex marriage.

Even if the Windsor and Perry decisions will have only a limited immediate effect on religious liberty, this may be a propitious time for proponents of accommodations for religious objectors to same-sex marriage to step back and address some hard questions. First, I think religious opponents of same-sex marriage have to confront Justice Kennedy’s characterization of their motives directly. In doing so, it may be necessary to open for public discussion the question of whether it is ever fair and appropriate to characterize a religious belief as bigoted or reflecting animus.

Or to put the question slightly differently, how do we determine whether a religious belief deserves to be characterized as prejudiced or bigoted? Religious individuals and commentary throughout American history have expressed harsh and hurtful messages about people of different religions and races. Protestants demonized Catholics through much of the 1700s and 1800s. Religiously based anti-Semitism was common through much of American history. The subordination of African-Americans was justified on religious grounds. When, if ever, should those beliefs and sermons be described as prejudice?

I am not arguing that religious attitudes about the immorality of homosexual conduct and opposition to same-sex marriage are the equivalent of these attitudes. And I understand how much religious opponents of same-sex marriage resent being described as bigots. I think this issue has to be addressed directly, however. Does a religious foundation for beliefs about gays and lesbians, Jews or Catholics, or African-Americans preclude condemning those beliefs as prejudice? If some religious beliefs can be fairly and accurately censured as prejudice, how do we determine which beliefs deserve such criticism?

Second, for both normative and political reasons, I think it is a serious mistake for proponents of accommodating religious objectors to same-sex marriage to argue that states should refuse to recognize same-sex marriages in order to avoid prospective infringements of religious liberty. The use of this argument needs to be reevaluated. As Marc Stern, Douglas Laycock, and Thomas Berg, all three prominent advocates for religious liberty, argued in their amicus brief for the American Jewish Committee in the Perry case: while “significant religious liberty issues will follow in the wake of same-sex civil marriage . . . it is not an appropriate response to prohibit same-sex civil marriage in order to avoid addressing issues of religious liberty. No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own important liberty. . . . Religious liberty, properly interpreted and enforced, can protect the right of religious organizations and religious believers to live their own lives in accordance with their faith. But it cannot give them any right or power to deprive others of the corresponding right to live the most intimate portions of their lives according to their own deepest values.”

Third, I think the issue of accommodating objectors to same-sex marriage has to be discussed in the context of providing protection to religious liberty more generally. Yet many of the arguments supporting accommodations for religious objectors to same-sex marriage appear to assume, at least implicitly, that religious beliefs about homosexual conduct and same-sex marriage deserve more recognition, respect, and protection than most other religious beliefs. Should public and private employers have a greater duty to accommodate religious employees who object to carrying out work responsibilities that facilitate, promote, or validate same-sex marriages than their duty to accommodate religious employees who seek a work schedule that allows them to observe the Sabbath? Should religious organizations receiving government funds to operate a social service program be permitted to deny services to gay and lesbian beneficiaries or same-sex married couples when they are prohibited by law from denying services to any otherwise eligible client because of the beneficiaries’ religious beliefs and practices? Singling out accommodations for opponents of same-sex marriage is also contrary to religious equality principles, which reject the preferential treatment of religions holding certain beliefs (here, opposition to same-sex marriage) while denying accommodations to religions seeking protection for other forms of religious exercise. The debate about accommodations for objectors to same-sex marriage should not dominate discussion of religious liberty in our society. It should be understood to be part of a broader discourse that addresses the liberty of all faiths.

Concerns about accommodating religious objectors to same-sex marriage raise difficult normative, political, and legal problems. I do not think that the Windsor and Perry decisions will substantially exacerbate or alleviate these problems. These issues are important and difficult enough to require our thoughtful attention, however, even without the impetus of recent Supreme Court cases. The time for engaging in such a frank and careful inquiry is now.

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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