There are times when American politics can give you whiplash, and the political battle over same-sex marriage may be the most dangerous to your health. Let’s start in 2003 with the decision by the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health holding the state ban on same-sex marriage violated the state constitution. It was an extraordinary victory for the LGBTQ community and an alarm bell for conservatives. The former were emboldened while the latter were politically mobilized.
The conservatives ran, not walked, to the states to lobby for amendments and statutes banning same-sex marriage and declaring that heterosexual marriage, or as they like to call it, “marriage between a man and a woman,” is the only option. The defense of heterosexual marriage as the only option was awash in religious verbiage and promoted by numerous clergy from the conservative side of the spectrum.
The gate slammed shut in numerous states, but not all, leaving same-sex marriage advocates openings in several states like California and New York to obtain an expansion of the definition of marriage to include not just opposite-sex couples, but same-sex couples as well. The public debate in opposition centered around the religious justifications for “traditional” marriage, with objections to same-sex marriage also faith-based. For example, same-sex marriage was an affront, because God made man and woman to procreate. Shadowing that argument was the further argument that God made everyone to be heterosexual, and so limiting legal recognition to traditional marriages didn’t really burden anyone.
As the number of states recognizing same-sex marriage grew as a result of lobbying and decisions at the Supreme Court, there was a huge push to get state Religious Freedom Restoration Acts (RFRAs) in place so that believers would not have to support or deal with same-sex marriage or even LGBTQ individuals.
So when the Supreme Court heard the oral arguments in the same-sex marriage cases this week, one might have expected some religious content. Yet, there was very little and it was as basic as it gets.
The couples challenging the states’ bans have raised numerous arguments, but the focus is this: to avoid a violation of equal protection, the states with bans on same-sex marriage must assert some reason other than animus. The states must fill in that blank to win.
The Lack of Religious Content
When one places this argument in the historical and political context, it is hard to fathom how 2.5 hours of argument could have so little religious content. We have come a long way from the backlash against Goodridge for the representative of the states defending the marriage bans, Mr. John J. Bursch, not to invoke the religious origins of heterosexual marriage before the Justices—or even make an argument that the ban is simply part of the United States’ often-invoked “Christian heritage.”
Rather, by the oral argument in the Supreme Court this week, the religious element had dropped out nearly altogether. On the side of permitting states to keep the bans was the oft-repeated word, “millennia,” which was a reference to how long there has been “traditional” marriage, but it was not the Biblical millennia as much as it was just a very long time.
No more was there an argument that God had decreed heterosexual marriage, and heterosexual marriage alone. The ban on same-sex marriage was justified, according to Mr. Bursch, because of, well, biology, viz., the need to cement the connection between a child and his or her biological parents. According to Mr. Bursch, his side’s “number one answer” to Justice Breyer’s question regarding why it is appropriate to deny marriage to same-sex couples is “that the marriage institution . . . developed to serve purposes that, by their nature, arise from biology.”
Justice Ginsburg challenged Mr. Bursch’s thesis that same-sex marriage undermines heterosexual marriage: “[Y]ou’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.” His response was that “it has to do with the societal understanding of what marriage means. . . . [W]hen you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.” He also offered a peek into the future with same-sex marriage on his biological reasoning: “if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage.” He did not get a lot of assents to that from the bench.
To get a fuller sense of how much biology has displaced religion in the defense of the bans in constitutional discourse, the terms “biology” and “biological” were uttered 25 times at the Court, while “religion” and “religious” were uttered only 7 times. Moreover, the references to religion were not for the purpose of justifying the ban on same-sex marriage. (It is richly ironic that biology displaced religion for the proponents of the bans on same-sex marriage, but I digress.)
Following on the heels of the heated state RFRA disputes, where believers have publicly and passionately extolled their faith as the reason they cannot deal with same-sex couples or the business they generate, this discussion seemed arid and artificial. The religion-less content is not accidental, though.
What drove the states to find non-religious ways to explain a movement that was quite publicly and obviously religiously motivated? The First Amendment, and specifically Establishment Clause. The problem for the states in these cases is that if their only reason to ban same-sex marriage is religious, the bans are unconstitutional under Lemon v. Kurtzman and numerous other cases. Thus, the religious content behind the bans had to be washed away and new content poured into them.
The secular skeleton of the religious justifications against same-sex marriage ultimately was not persuasive, to put it mildly. Moreover, to distinguish heterosexual from same-sex marriage, Bursch had to make arguments like marriage isn’t primarily for love or an emotional commitment, and it does not bestow dignity.
The first half of the first argument was relatively mild in tone, but once he began to push biology as the sole reason justifying traditional marriage (and, therefore, opposing same-sex marriage), numerous Justices took exception, including the swing vote, Justice Kennedy.
The One Religious Issue Raised
Justice Scalia raised the one religious issue to be broached, and it was such a no-brainer, it was almost embarrassing to hear him utter the point. It started with Justice Sotomayor asking whether, in states with same-sex marriage “ministers [have] been forced to do gay marriages.” The answer was in the negative from Ms. Bonauto, who was arguing for the same-sex couples, but Justice Scalia picked up the point.
He noted in a rather confusing way that same-sex marriage could just be a creature of legislation, “not constitutional requirement. . . . If you let the States do it, you can make an exception. The State can say, yes, two men can marry, but—but ministers who do not believe in—same-sex marriage will still be authorized to conduct marriages on behalf of the State. You can’t do that once it is a constitutional proscription.” At first, he seemed to be asserting that if the Court were to find that the bans on same-sex marriage were unconstitutional, then ministers would be required to officiate over same-sex marriage services regardless of their beliefs. Ms. Mary Bonauto rightly responded that “a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at.”
Justice Scalia seemed to agree, as he must, because it is patent that the First Amendment would bar any state from compelling a member of the clergy to officiate at any religious ceremony. That is a no-brainer. As Justice Kagan soon pointed out, “there are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding we have a constitutional prohibition against religious discrimination.” Precisely. But then Justice Scalia tried another tack: making the point that the political process means of accommodating same-sex marriage is better than constitutionalizing it, because a state law can create exemptions for believers, while there are no exceptions to the Constitution.
This argument makes absolutely no sense regarding ministers, who have their own built-in First Amendment exception to any law that would mandate they perform marriages to which they object. If he had limited his comments to saying that government officials would not be able to discriminate in their government jobs if the Court rules in favor of the same-sex couples. Again, true, but, again, a constitutional truism.
But that was not all! Before Ms. Bonauto stepped down he asked her to confirm “that ministers will not have to conduct same-sex marriages[.]” She assented. That was still not the end of it, though. Not long thereafter, Chief Justice Roberts underscored, in a preamble to a question for Solicitor General Donald Verrilli, that “clergy will not be required to perform same-sex marriages.”