Tuesday, October 14, 2008


I was going to write an explanation of legal consequences of Prop. 8 but my friend from law school beat me to it and did a much better job. You can also check out her blog discussing the issue here: http://gr8prop8deb8.blogspot.com/.

I have gay friends. I have straight friends. I love them both and respect their views. And I believe—sincerely—that we live in a country where all views are sacred and deserve to be respected and protected under the law.

That is why I support Proposition 8.

First, let me premise this post by stating that I’m not a raging, elephant-riding Republican or an unschooled, bible-bashing automaton (if you are either of these, I apologize if I offend). I've been around the proverbial block on the issue of free exercise. During my undergraduate studies, I chaired a regional committee on Constitutional autonomy in education. In 2003 and 2006 I wrote and published articles on the clash of First Amendment liberties and secular doctrine.[1] I worked under the leading counsel on First Amendment rights at the U.S. Department of Justice in Washington D.C. I'm not saying my views are more legitimate than anyone else's, I just want to clarify that I’m not spouting blindly on the subject.[2]

Now let’s all get one thing straight: religion will be affected by a redefinition of marriage. Both liberal and conservative scholars admit that the outcome of Proposition 8—whether passed or rejected—will dramatically shape the First Amendment landscape.[3] The basic premise of the debate pits First Amendment rights of free exercise against Fourteenth Amendment guarantees of equal protection. And legal scholars betting on the outcome predict universally that free exercise will lose the fight.[4]

I am not arguing that if Proposition 8 doesn’t pass, churches will be silenced at the pulpit or forced to change their religious creed. But when free exercise and equal protection collide—and they will—free exercise will get the short end of the stick. Marc Stern, a contributing editor of “Same-Sex Marriage and Religious Liberty: Emerging Conflicts,” explains: “[N]o one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them. Same-sex marriage w[ill], however, work a sea change in American law. That change will reverberate across the legal and religious landscape in some ways that are today unpredictable.”[5]

Take education, for instance.[6] In Massachusetts, the state Supreme Court—not a vote of the people—redefined marriage just as occurred in California. In 2007, a Massachusetts elementary school began teaching kindergarten and first grade children about same-sex marriage using a book which told the story of a prince who “lived happily ever after” with another prince. (*I’m not commenting on the quality of the story here, just the legal outcome*). Some parents requested that their children be allowed to opt-out of such instruction until the seventh grade. They did not challenge the use of the book as part of the school’s curriculum. When the school district refused to let the children opt-out, the parents sued in federal court.

They lost. In a 47-page opinion, the First Circuit held that the parents’ right to choose traditional marriage education for their child was not protected by the First Amendment because same sex marriage was permitted by Massachusetts law.[7] Free exercise could not justify legal exemption where due process and equal protection rights were in play.[8]

A similar outcome is not only possible in California, but likely. California’s Supreme Court has already mandated same sex marriage under the law, and unless voters amend this law in November, the court decision stands. California schools would be authorized to teach the same sex tenets of California policy.[9] And it is not difficult to imagine a same sex curriculum under the Education Code which requires schools to teach children about marriage from kindergarten forward.[10]

When First Amendment rights are pitted against Fourteenth Amendment due process, somebody will get hurt. This is not a Chicken Little prophesy. It is a legally-recognized fact.[11] (For a brief note on the sham security blanket of the “In re Marriage opinion, see footnote 12).[12]

A collision of First Amendment and equal protection rights is not the only consequence of redefining marriage. If the California court’s “In re Marriage” decision stands, the American system will have failed. Our three-branch institution is governed by the “separation of powers” principle. Each governmental branch—executive, legislative, and judicial—has a distinct and constitutionally-limited role which “checks and balances” the others. The legislators make the laws. The executive enforces the laws. The judiciary makes sure the laws square with the Constitution. For the system to survive, the branches must play by these rules.

The “In re Marriage” decision was a check-and-balance mess. The California court stepped into distinctly legislative territory when it redefined marriage as between “any two people” in direct contravention of California voters. This definition was not an interpretation of existing law, it was the invention of a statutory right. Whether you’re liberal or conservative, gay or straight, the system isn’t working right.

Some same sex marriage supporters compare the current conflict to the civil rights movement. A poorer comparison does not exist. (I lie. Comparing Prop 8 to the Potato Famine of 1845 would be pretty bad.) This is not a civil rights issue. Wait. Let me say that again. *This is not a civil rights issue.* Civil rights are implicated when a “fundamental right” protected by the due process and equal protection clauses of the Fourteenth Amendment is restricted. There is no fundamental right to gay marriage.[13]

An important distinction must be made here. Common usage of the term “rights” conflates two distinct legal meanings: those rights that are specially provided for under the Constitution (e.g., free speech), and those rights that exist simply because no law has been passed restricting them (e.g., the right to use a cell phone while driving). The latter type of right is not protected under the law and is subject to potential regulation. The former type is protected and cannot be withheld; however it must be constitutionally-derived.[14] To expand “fundamental rights” outside this boundary would unravel the fabric of American law.[15] Now to get technical. The Supreme Court has recognized a right to the marriage institution as defined by law.[16] And, as acknowledged by every court adjudicating the issue, both gay and straight citizens have equal access to this right.[17] Straight or gay, a citizen is allowed to “marry” as defined by law—i.e. to couple with a person of the opposite gender.[18] What same-sex marriage supporters are arguing for is the “fundamental right” to couple with any person. This is not a recognized “fundamental right.” In fact, the California Supreme Court’s entire premise for the “fundamental right” of same sex marriage rests on a misinterpretation of the “right to privacy,” a uniquely Californian entitlement concocted by a legislative staffer in the 1970s.[19] It is on this “privacy right” that California’s court-fabricated “right” to same-sex marriage derives.[20] (For a brief word on equal protection, see footnote 21 below.)[21]

Many of you reading this are Mormon, and I make a final note to you here. There are some of you who are up in arms—nay, outraged—that the church would dare enter the secular arena and preach politics from the pulpit. It offends your very soul that General Authorities are discussing the weighty affairs of government. To you, this entire situation just feels plain wrong. Your feelings are not misplaced. This situation is so wrong, it violates the founding principles of our nation. But the error is not on the church’s part, it is on the state’s. By authorizing the reconstruction of a markedly religious rite, the judiciary has violated Establishment Clause principles which prohibit government interference with religious faith. In effect, the state has shoved the church into the middle of the civic street, and we are trying to drag ourselves back onto the sidewalk again.

I support the right to believe. I support equal rights. And I endorse apportionment of the rights and liberties provided by our Constitution to every citizen—gay, straight, religious, or agnostic.[22] That is why I support Proposition 8.[23] It's not because I don't love my gay friends. It's not because I think people who believe differently than I do are bad. It's just that as a rights-respecting American citizen, I am not willing to override basic principles of Constitutional liberty.

...And now I'm stepping off my soap box. Respond at will. (For the sake of sanity and limitless-word postings, I'd ask that you direct your comments to this post on my blog at http://gr8prop8deb8.blogspot.com)


[1] If you’re really that curious (please don’t be): Carolyn A. Deverich, "Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitary-Accommodationist Argument for the Constitutionality of God in the Public Square," 2006 BYU L. Rev. 211 (2006); Carolyn A. Deverich "Saving Grace: Deterrents to the Secularization of American Law," 17 PreLaw Review 71 (2003).

[2] I also don't mean to sound like an arrogant, elitist snob. For the record, I still can't tie my shoelaces without singing the bunny song.

[3] Anthony Picarello, president and general counsel of the leading First Amendment law firm in the country noted that “[t]he impact of [the same sex marriage debate] will be severe and pervasive. This is going to affect every aspect of church-state relations. …[T]he church is surrounded on all sides by the state [and] church and state butt up against each other. The boundaries are usually peaceful, so it’s easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter.” quoted in Maggie Gallagher, “Banned in Boston,” The Weekly Standard, Vol. 11, Issue 33 (May 15, 2006), available at http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp; Mark Hemingway, “Gay Abandon,” National Review, July 14, 2008, available at http://findarticles.com/p/articles/mi_m1282/is_/ai_n27925966.

[4] As law professor and gay marriage scholar Robin Wilson puts it, “If the courts treat [same sex marriage] as a ban on racial discrimination, then there’s not much likelihood that any religious claims will survive.” Nationally-recognized gay civil rights advocate and Georgetown law professor Chai Feldblum agrees, noting that the clash between free exercise of religion and sexual liberty is real, and when the two conflict, “[one] ha[s] a hard time coming up with any case in which religious liberty should win.” Both Felblum and Wilson are contributing editors of the recently published book, “Same-Sex Marriage and Religious Liberty: Emerging Conflicts” (Rowman & Littlefield Publishers 2008).

[5] “Same-Sex Marriage and Religious Liberty: Emerging Conflicts” (Rowman & Littlefield Publishers 2008).

[6] I use education as a counterargument to Morris A. Thurston’s contention that Prop 8 supporters are lying when they cite school curriculum as a target for the same sex marriage fallout. (Thurston’s article is available at http://www.mormonsformarriage.com/wp-content/uploads/2008/09/secondversionresponsestosixconsequencesifprop8fails1.pdf). Thurston uses education as his first example and so I use it as mine.

[7] Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), available at http://www.ca1.uscourts.gov/pdf.opinions/07-1528-01A.pdf.

[8] For my legally-minded friends who prefer an in-depth breakdown: The Parker court analyzed the parents’ First Amendment claims under U.S. Supreme Court opinion, Wisconsin v. Yoder, which views due process and free exercise rights “interdependently.” 406 U.S. 205 (1972). Under the Yoder approach, the First Circuit looked to whether the school’s curriculum imposed a “constitutional burden on the[] [parents’] rights, or on those of their children.” Finding no parallel between the Yoder plaintiffs’ “unique and demanding religious way of life that is fundamentally incompatible with any schooling system” and the Parker parents’ religious objection to mainstream law, the court held that the parents had “no constitutional right to ‘direct how [the] public school teaches their child.’” In short, there was “no federal case under the Due Process Clause which has permitted parents to demand an exemption for their children from exposure to certain books used in public schools.”

[9] Thurston’s uninspired argument suggests that it won’t be MANDATORY to teach same sex education in the schools. Well sure, Thurston. I agree. But once a school DOES start teaching same sex marriage, parents can’t do much about it.

[10] Cal. Educ. C., § 51890(a)(1), available at http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=75854627166+0+0+0&WAISaction=retrieve.

[11] I have a comment to those of you whipping out your copy of Morris A. Thurston’s “Mormon Myth” commentary (available at http://www.mormonsformarriage.com/wp-content/uploads/2008/09/secondversionresponsestosixconsequencesifprop8fails1.pdf): Aside from Thurston’s education argument which I already addressed, the entire premise of his “no-effect-from-gay-marriage” argument is that there are no on-point cases deriving an anti-traditional marriage stance from the adoption of same sex marriage. Seeing that only four states have legitimately addressed the same sex marriage issue—and only in the past five years—this is not particularly surprising . Legal scholars recognize that the redefinition of marriage “[is]not like a bone sticking out of a limb or blood spurting out of a wound. …It will be at least a full generation before all the consequences [of redefining marriage] are known. Like smoking, it will take years and decades to see the result.” Carrie A. Moore, “Gay Marriage Criticized,” Deseret News, August 23, 2008 (quoting Professor Lynn Wardle). Thurston’s “but it hasn’t happened!” argument is the equivalent of me saying I shouldn’t bother wearing a seatbelt because I haven’t gotten into an accident yet. Have you SEEN me on the freeway?

[12] Some same sex marriage supporters point to the language of the “In re Marriage” court as proof that traditional marriage citizens will not be impacted by a redefinition of marriage. Specifically, they quote the tail end of the argument which states, “[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” “In re Marriage Cases,” 43 Cal.4th 757 (Cal. 2008). While I like that the court gives a shout-out to the traditional camp, this statement is mere “dicta”—the equivalent of a legal belch. It is not part of the court's actual holding, has nothing to do with the adjudicated issue, and is not enforceable in a court of law. It's just judges passing gas. So as for the argument that religion won’t be affected…it’s just a lot of wind.

[13]Kerrigan v. Commissioner of Public Health, (October 10, 2008) (slip op.) (Zarella, J., dissenting), available at http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR289/289CR152G.pdf.

[14] Of course, this raises the option of amending the Constitution to provide for a certain right. This is what a majority of the amendments to the Constitution do.

[15] Courts are clear that a restriction of “fundamental rights” is necessary to preserve our legal system. In short order, the courts have denied a “fundamental right” to smoke in public (Fagan v. Axelrod, 550 N.Y.S. 2d 552, 560 (1990)), to groom one’s hair (City of North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla. 1995), to adopt (Smith v. Organization of Foster Families, 431 U.S. 816 (1977)), or to receive public health care. The list continues, my space does not.

[16] See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); see also Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

[17] See e.g., Andersen v. King County, 158 Wash. 2d 1, 65 (2006) (law limiting marriage to marriage between one man and one woman ‘‘does not distinguish between persons of heterosexual orientation and homosexual orientation’’); Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003) (Cordy, J., dissenting) (‘‘[t]he classification is not drawn between men and women or between heterosexuals and homosexuals, any of whom can obtain a license to marry a member of the opposite sex; rather, it is drawn between samesex couples and opposite-sex couples’’); cf. Hernandez v. Robles, 7 N.Y.3d 338, 359 (2006).

[18] Comparisons to the 1948 Perez v. Sharp case which compelled interracial marriage are not analogous for this reason. There, black citizens were not protected equally under the law because, unlike white men, they were not allowed to marry white women. Here, gay and straight citizens are treated identically under the law.

[19] That right, a two-word amendment to the California constitution, was designed to impose privacy restrictions on the disclosure of public records. See Bob Egelko, “‘... And Privacy’: How a Two-Word Amendment to the State Constitution in 1972 Led to the Legal Basis for Same-Sex Marriage in California,” California Lawyer (August 2008), available at http://californialawyermagazine.com/story.cfm?eid=895415&evid=1.

[20] In validation, Justice Ronald M. George explained that “the right to marry is an integral component of an individual’s interest in personal autonomy protected by the privacy provision of article I, section I.” “In re Marriage Cases,” 43 Cal. 4th 757, 818 (2008).

[21] A note on equal protection and discrimination (for Nate, particularly). Some posit the theory that side-by-side marriage and civil union laws violate the equal protection clause because they “single out” the gay class. However, “the constitution does not, of course, prevent the legislature from dealing differently with different classes of people. It means only that classifications must be based on natural and substantial differences, germane to the subject and purpose of the legislation, between those within the class included and those whom it leaves untouched.” Eielson v. Parker, 179 Conn. 552, 566, 427 A.2d 814 (1980) (see Brown v. Merlo, 8 Cal. 3d 855, 861 (1973) (equal protection provisions permit legislation that singles out a class for distinctive treatment “if such classification bears a rational relation to the purposes of the legislation.”). A marriage statute purposed on the legal union of a man and a woman passes muster here. (See Kerrigan v. Commissioner of Public Health, (October 10, 2008) (slip op.) (Zarella, J., dissenting), available at http://www.jud.state.ct.us/external/supapp/Cases/AROcr/CR289/289CR152G.pdf). On a non-legal plane, discrimination exists on both sides of the argument. Ironically, the same-sex marriage camp advocates a position that would result in the discrimination of those who oppose them. As Maggie Gallagher describes, under the proposed same-sex marriage arrangement “[p]eople who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don’t arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities.” Maggie Gallagher, “Banned in Boston,” The Weekly Standard, Volume 11, Issue 33 (May 15, 2006).]

[22] I am MORE than supportive of ensuring that same sex couples receive identical status as heterosexual couples under the law. But reclassifying "marriage" wholesale --an act that will legally do NOTHING to the current rights of gay couples under California law—is not reflective of the rights authorized by our laws. Rights that are authorized are available to all citizens. See the California Code which provides that “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provision or sources of law, as are granted to and imposed upon spouses.” Cal. Fam. C. § 297.5.

[23] On the most fundamental level, these beliefs derive from my religious conviction in the words of our prophet, Thomas S. Monson. But that is fodder for another day.


Christa Jeanne said...

Em, thanks for posting this!!! I've been meaning to do so - Carolyn's genius!

Tom said...

You might find this interesting, enlightening reading:

Does Recognition of the Right of Same-Sex Couples to Marry Impose Undue Burdens on People Who Reject Same-Sex Marriage on Account of Religious Convictions? An Evaluation of This Objection to the Massachusetts and California Same-Sex Marriage Decisions
Tuesday, Jul. 8, 2008

Some critics of the state Supreme Court rulings in Massachusetts and California that recognize the right of same-sex couples to marry have suggested that these cases create a conflict between religious believers and proponents of religious liberty, on one side, and gay men and lesbians and supporters of gay rights, on the other.

Their argument is more practical than normative. The rulings’ critics maintain that recognizing same-sex marriages will inevitably lead the state to interfere with and burden the religious liberty of faith communities that hold traditional beliefs deeming homosexual conduct immoral. For example, the critics fear that religious employers may be forced to violate the tenets of their faith if they are required by state law to extend health and retirement benefits to the same-sex spouses of their employees, just as they are for opposite-sex spouses.

We think this new attempt to characterize the debate about same-sex marriage as a “God versus Gays” battle is grounded on mistaken, or at least carelessly-considered, legal assumptions. Indeed, in important respects, protecting the right of gay men and lesbians to marry may help to reaffirm and reinforce religious freedom in our legal system far more than it will interfere with the free exercise of religion – for reasons we explain later in this column.

When Secular Law and Religious Practice Conflict, the Solution Is to Seek Religious Exemptions – Not to Reject Secular Law

It is true that recognizing same-sex marriages may generate some clashes between civil law and the doctrine of certain religious institutions. But that kind of conflict between law and religion is unavoidable in a pluralistic society such as ours, with hundreds of different faith communities and numerous secular individuals living and working together. It is hard to imagine how the government could ever adopt any law or policy if it had to be certain beforehand that the enactment and implementation of the new statute or regulation would never burden any person’s beliefs or practices.

In sum, it is inevitable that laws serving secular goals may interfere with the exercise of religion of some individuals or institutions. The appropriate way to resolve this conflict is not to forego such laws, but rather to accommodate those religious communities by exempting them from requirements in the law that unreasonably interfere with the practice of their faith. That solution makes intuitive sense in many cases, and is a commonly-utilized mechanism for protecting religious liberty in our society. Hundreds of laws, ranging from zoning regulations to conscription statutes to restrictions on the use of illegal drugs, contain religious exemptions that limit the laws’ application. It is neither plausible nor reasonable, however, to insist that legal rules should be rejected in their entirety whenever they create potential conflicts with particular exercises of religion.

Ironically, we could not even protect religious individuals against discrimination on the basis of their religion if we refused to enact laws that risked creating such conflicts. Title VII, an important part of the federal civil rights statutory framework, prohibits employers from discriminating in hiring on the basis of an employee’s race, gender, and religion. It was abundantly clear when Title VII was enacted that its implementation would conflict with the hiring decisions of many religious institutions which, not surprisingly, have taken religion into account in hiring their staff. The solution to the problem, of course, was to adopt exemptions for religious institutions from the operation of Title VII’s prohibition against religious discrimination. This limited accommodation was a much more appropriate response to the problem than refusing to enact Title VII altogether would have been.

The Right of Same-Sex Couples to Marry Should Not Be Denied Because of Potential Conflicts with Religious Practice When Carefully Crafted Religious Exemptions May Resolve these Issues

The same analysis applies to same-sex marriage. If extending legal recognition to same-sex marriages burdens the exercise of religion of some religious institutions or individuals in certain circumstances, then the correct way to deal with those conflicts is for governments to adopt whatever accommodations may prove to be necessary and reasonable -- not to refuse to recognize the marriages in the first place.

Of course, there is no guarantee that such accommodations will (or should) always be granted. Not every demand for an exemption is justified. Some balancing of governmental interests and religious liberty will be necessary. Accordingly, critics of same-sex marriage may plausibly worry that, from their perspective, too many requests for accommodation will be denied.

But in making their arguments about the threat posed to religious liberty, the critics miss an important point: The constitutional foundation for protecting same-sex marriage is remarkably similar to the foundation for protecting the exercise of religion.

There are Key Similarities Between the Arguments Supporting the Constitutional Protection of Same-Sex Marriage, and the Arguments for Protecting the Free Exercise of Religion

Indeed, the same legal and constitutional arguments that are asserted to justify protecting the right of same-sex couples to marry can be used to justify protecting the free exercise of religion and accommodating religious practices generally.

Both the right to marry and the right to exercise one’s religion free from government interference are basic autonomy rights. We protect these rights because they involve important, self-defining decisions that belong, as of right, to individuals rather than the state.

Intimate sexual relationships and religious commitments both involve core aspects of a person’s identity. Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances.

The Massachusetts and California decisions do not undermine the case for religious accommodations. If anything, they actually help to justify them. By recognizing the autonomy of gay individuals who seek to formalize their relationships through marriage, courts strengthen the argument for respecting other self-defining decisions that are intrinsic to personal identity. It is in the nature of our legal system that by respecting one autonomy right, we reinforce respect for other autonomy rights.

Finally, and this is probably the most important point, religious liberty and the justification for religious accommodations are based on principles of substantive and functional liberty and equality. Unlike formal liberty and equality values that presuppose the irrelevance of differences among people, substantive constitutional values require acknowledgement and respect for differences. These principles are not vindicated by treating everyone the same way. Instead, we have to take the differences between people into account, in a positive sense, if their liberty and equality are to be meaningfully protected.

There is no doubt that this is a core free exercise idea. When the United States Supreme Court, in a case called Employment Division v. Smith, held over fifteen years ago that the Free Exercise Clause provides no meaningful protection against neutral laws of general applicability, religious groups across the country were outraged. They understood that people of different faiths are not similarly-situated. The same law that causes no problem from a Protestant’s point of view may substantially burden the religious practices of a Jew, or a Catholic, or a Native American. For religious liberty to be meaningful, courts have to take religious variations into account.

Of course, the same argument applies to gay rights and same-sex marriages. Courts have to take the sexual orientation of each individual into account if the right to marry is to have meaningful value to gays and lesbians. Just as the free exercise of religion is useless to an Orthodox Jew if it only protects his right to observe Sunday as the Sabbath, so too the right to marry is an empty guarantee if it only protects a lesbian’s right to marry a man. In both instances, the law has to focus on characteristics of individuals who might fall outside the majority for rights to be meaningfully interpreted and enforced.

These arguments do not suggest that there won’t be some real conflicts between religious institutions and individuals and legally-married same sex-couples about the scope of religious accommodations in this area. As noted earlier, lines will have to be drawn and competing interests balanced.

But given the common ground underlying the rights of both groups, there is more of a potential for alliances and compromises here than might appear at first glance. Respect begets respect. That ought to be the foundation for a conversation here that is long overdue.