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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.

Aftershock

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 Michael D. Peabody

On June 26, 2013, the U.S. Supreme Court issued two highly anticipated rulings in same-sex marriage cases. First, the Court ruled that the federal government has to legally recognize the marriages of same-sex couples in those states that have legalized them. In a second decision, the Court declined to hear an appeal in defense of a California ballot initiative that had banned same-sex marriage on grounds that the nongovernmental party bringing the appeal lacked standing. For reasons discussed below, both decisions represent incremental steps that will ultimately lead the Court to consider whether same-sex marriage should be a right nationwide.

A couple for 40 years, Edith Windsor and Thea Spyer were legally married in Canada in 2007, and New York recognized their marriage under the common-law principle of legal reciprocity. In 2009 Spyer died, leaving her considerable estate to her spouse. While she had received the benefit of New York’s marriage laws, the IRS still required her to pay $363,053 in estate taxes because the federal Defense of Marriage Act (DOMA) prohibited the federal government from recognizing marriages that were not between a man and a woman. Windsor paid the tax bill but then sued for a refund, arguing that DOMA singled out legally married same-sex couples for “differential treatment.”

In Windsor v. United States the Supreme Court ruled 5-4 that Section 3 of DOMA was an unconstitutional “deprivation of the liberty of the person protected by the Fifth Amendment” when a marriage was legally recognized by the state. Written by Justice Anthony Kennedy, the Windsor decision stated that because of DOMA, “same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.” Kennedy then described the various effects of DOMA, including denial of health-care benefits and bankruptcy code protections, difficulty in filing joint federal taxes, and the inability to be buried together in veterans’ cemeteries.

The Windsor decision will require the federal government to adhere to each state’s definition of marriage, and the Court let Section 2 of DOMA stand, which declares that all states have the right to deny recognition of marriage that originated in states where they are legally recognized.

But post-Windsor, Section 2 is on shaky ground. There are problems that will, short of a legislative solution, likely find their way to the Court. For instance, what happens if one partner in a same-sex marriage receives income in a state that recognizes the marriage, and the other receives income in a state that does not recognize the marriage? The couple may not be able to file joint taxes and thus have to pay more in federal taxes as individuals and thus be denied equal protection.

With the federal government bound to the state definitions of marriage, the Court then addressed the second case, this time involving a state issue, inHollingsworth v. Perry. In November 2008, in the wake of a May 2008 state supreme court ruling overturning a ballot-driven statute prohibiting same-sex marriage, California voters passed Proposition 8 (“Prop 8”), a ballot initiative that changed the state constitution to prohibit same-sex marriage.

Opponents to Prop 8 immediately appealed the new law to the California Supreme Court, which ruled that it could not overturn a provision of the state constitution, regardless of its content. The case then went to the federal court where Judge Vaughn Walker held a trial in 2010 on the merits of Prop 8. At this stage the case was called Perry v. Schwarzenegger, and the defense against the appeal was backed by the state of California.

During the Prop 8 campaign, supporters had relied heavily on sloganeering and fear, claiming that the legalization of same-sex marriage would lead to churches being required to perform gay marriages or risk losing their tax-exempt status, that pastors would be fined or thrown into jail for preaching against same-sex marriage, and claims that homosexuals were far more likely to be pedophiles.

Judge Walker believed that a fundamental right to marry was at stake, and he applied the “strict scrutiny standard,” which required proponents of Prop 8 to demonstrate that the legislation was necessary to achieve a compelling state interest.

At trial, Prop 8 supporters put only two witnesses on the stand, both of whom had previously written statements that contradicted their direct testimony. David Blankenhorn, the founder and president of the Institute for American Values think tank, who was expected to be the star witness in favor of Prop 8, folded when confronted with his previous writing, which stated that “we would be more American on the day we permitted same-sex marriage than we were the day before.”

At trial, Blankenhorn testified that marriage would benefit same-sex couples and their children and would reduce discrimination against gays and lesbians, but even so, the state should not recognize same-sex marriage because it could conceivably weaken marriage as an institution.

The second witness, Professor Kenneth P. Miller, was expected to argue against the compelling state interest standard by providing testimony that gays and lesbians were not a discriminated-against minority and were not harmed by Prop 8. When asked where he got the information for his testimony, he cited materials given to him by the Prop 8 attorneys. Miller then admitted to writing an article in 2001 in the Santa Clara Law Review in which he had written that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process.1

With these two witnesses neutralized, Prop 8 advocates had nothing left with which to prove their case. In contrast, opponents of Prop 8, led by attorneys David Boies and Theodore Olson, who had previously squared off against each other in Bush v. Gore, put nine expert witnesses and eight lay witnesses on the stand who provided testimony that gays and lesbians were discriminated against by Prop 8 and that the law failed to pass even the rational basis test. The primary argument was that same-sex marriage would provide another platform for stability and social order.

Prop 8 opponents went so far as to call Hak-Shing William Tam to the stand to testify that voters had been given incorrect information and have voted based on prejudice rather than facts. Tam has helped craft arguments in favor of Prop 8, including an argument on the Prop 8 Web site that homosexuals were 12 times more likely to be pedophiles. In Court, Tam could not state where he got the information.

With the Prop 8 defense effectively disintegrated, Judge Walker’s decision finding that Prop 8 violated the equal protection clause and was therefore unconstitutional was predictable. In his decision, Walker cited the U.S. Supreme Court’s decision in Romer v. Evans, which stated, “Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”2 Walker continued, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

Some people have tried to argue that despite the failures of the Prop 8 supporters to present credible legal evidence to show that same-sex marriage would be harmful to society to the point that it needed to be legally prohibited, that Judge Walker should have had some general knowledge that would lead him to fill in the logical gaps based on legal, moral, and biblical truths and rule in favor of Prop 8. That would have met the very definition of judicial activism. Others argued that Judge Walker should have recused himself because he is a homosexual, but the same argument could go for heterosexual judges also facing the same issue.

In short, despite all the potential arguments that could have been raised, Prop 8 supporters failed to make the case that the state of California had a compelling state interest, much less a rational basis, for prohibiting same-sex couples from getting married. Had California voters made a similar decision that impacted rights involving freedom of speech or free exercise of religion, those adversely impacted would undoubtedly hope for a similar conclusion.

Why Prop 8 supporters could get only two expert witnesses on the stand is not particularly clear, particularly when 52 percent of the voters had approved the initiative. However, this may be partially explained by the fact that in the days immediately following the passage of Prop 8, gay rights advocates had mounted a campaign publicizing those who had supported “Prop Hate.” Web sites were set up to highlight those who had given donations in support of Prop 8 and were searchable by individual name and employer.3 Gay rights advocates boycotted businesses, and some employees whose employers were now listed on the database were fired. In one case a Los Angeles area coffee shop, El Coyote, was mobbed by protesters shouting “Shame on you” because the manager had donated $100 to the Prop 8 campaign. Police in riot gear settled the crowd. Fears of violence and direct economic impact may have prevented Prop 8 supporters from mounting a stronger defense.

It could have also been that supporters of Prop 8 knew that empirical data supporting the arguments made during the campaign was relatively thin. While the arguments could push emotional buttons during an election, many would wilt under the pressure of direct examination at trial. Expert witnesses who opposed same-sex marriage could also face professional repercussions if they “came out.”

Rather than regroup and figure out another way to address the Walker decision, perhaps in another jurisdiction in California, Prop 8 advocates appealed the decision directly to the Ninth Circuit Court of Appeals, where it could presumably have a broader impact. After the Walker decision, the state declined to support the appeals process, and Prop 8 supporters took over for the state with key Prop 8 proponent Dennis Hollingsworth’s name substituted in for the governor in the case now entitled Hollingsworth v. Perry.

The Ninth Circuit Court of Appeals upheld Judge Walker’s decision, and Prop 8 supporters now appealed to the U.S. Supreme Court, which found that the supporters did not have standing to bring the case forward when the state government had chosen not to do so.

The Supreme Court was reluctant to rule on the merits of same-sex marriage, and the issue of standing gave the Court an easy way out. In a “public conversation” at the University of Chicago Law School in May 2013, Justice Ruth Bader Ginsburg signaled the Court’s reluctance to bring about sudden nationwide change on major social issues. While not specifically discussing the same-sex marriage cases, Justice Ginsburg said that she had felt that the Supreme Court had gone “too far, too fast” in ruling that abortion was legal in Roe v. Wade, and that the Court “should have held only that the Texas law before it in Roe, which prohibited abortion unless necessary to save the life of the woman, was unconstitutional, leaving for the future the question of what other restrictions on abortion might be constitutional.”4

Justice Ginsburg argued that the decision had energized the pro-life community and caused a major backlash to abortion that exists to this day. Whether she was right or wrong about the reasons for the backlash, which probably had more to do with the support of religious institutions that opposed it on moral grounds, it does appear that the Court is trying to follow a cautious approach when handling the issue of same-sex marriage.

The Court may not be able to avoid the issue for long. While the Court has managed to avoid a direct hearing of the merits because of the standing issue, gay rights advocates intend to file lawsuits in states such as Utah and Texas that will defend their constitutional prohibitions on same-sex marriage. Those decisions will reach the Supreme Court, which will then have to make a decision on the merits.

For millennia the concept that marriage is between a man and a woman has been a “given,” with no explanation needed, but now that this basic premise has been called into question, it is necessary to articulate why it is this way to a secular society. In reality, apart from a scriptural basis for opposing same-sex marriage, or homosexual behavior in general, it has been difficult for same-sex marriage opponents to come up with convincing secular arguments that work as well in courts as in churches

Arguments that same-sex couples could not procreate failed in light of the history of legalized adoption by same-sex couples and the fact that infertile heterosexual couples routinely marry. In a culture of divorce, where single-parent households are very common, opponents failed to establish that the state should go one step further and mandate that children be raised, not by two fathers or two mothers, but by both a father and a mother, and that those children in same-sex-parented households would remain “illegitimate children.” Opponents of same-sex marriage could not articulate how same-sex marriage would adversely affect heterosexual marriage. Same-sex marriage was wrong, they would argue from Scripture, and less than the godly ideal, but they could not explain why it should be prevented in a secular world.

At the same time, for those who want to uphold traditional standards in their homes and churches, and teach them in their communities, the fact is that the governmental recognition and protection of same-sex marriages may lead to litigation and financial pressures. In some places it could even lead to persecution against those who continue to oppose same-sex marriage on moral or religious grounds as the freedom of speech, free exercise of religion, and the emerging freedom to marry any other consenting adult come into conflict.

Those who are opposed to same-sex marriage may experience a major chilling effect as threats of negative media publicity and pressure to conform their deeply held beliefs to secular law increases. In a free society, there is always a risk associated with anchoring personal morality to the whims of the majority or the state and not to the rock of Scripture and faith.

As the definition of marriage inevitably expands, religious groups, families, and individuals for whom homosexual conduct conflicts with their own moral beliefs will need to seek and maintain zones of legal protection, and recognize that they cannot depend upon the state to act as the guardian of morality.

1 Kenneth P. Miller, “Constraining Populism: The Real Challenge of Initiative Reform,” Santa Clara Law Review 41 (2001): 1037–1084.

2 517 U.S. at 634.

3 See Los Angeles Times Web site, “Proposition 8: Who gave in the gay marriage battle?”http://projects.latimes.com/prop8/

4 Geoffrey Stone, “Justice Ginsburg, Roe v. Wade, and Same-Sex Marriage,” Huffington Post, May 12, 2013,http://www.huffingtonpost.com/geoffrey-r-stone/justice-ginsburg-roe-v-wa_b_3264307.html (Accessed July 30, 2013).

Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”

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