Same-Sex Marriage and Religious Liberty in the USA and Globally by Lynn D. WardleBruce C. Hafen Professor of LawJ. Reuben Clark Law School, BYU Presented to the Religious Freedom in a Secular World CLE Conference sponsored by the International Center for Law & Religion Studies July 7, 2014
More SSM Humor One Lawyer to another as they leave a courtroom: 'I'm in favor of same-sex marriage. Same-sex marriage will lead to same-sex divorce.'
The Legal Status of Same-Sex Marriage and Unions in the USA and the World Lynn D. Wardle 3 July 2014 A. Legal Allowance of Same-Sex Unions in the USA in Twenty (20) of 50 states + DC + 8/564 Indian Tribes): Same-Sex Marriage Legal in Twenty (20) USA States (+ many fed crt state SSM orders) (NCSL says 17 States) Massachusetts (judicial decree 2004), Connecticut (judicial order 2008), Iowa (judicial order 2009), Vermont (2009), New Hampshire (2010), New York (2011), Maine (ballot 2012), Maryland (ballot 2012), Washington (ballot 2012), Delaware (2013), California (July 2013, judicial order not appealed), Minnesota (2013), Rhode Island (2013), New Jersey (judicial order 2013); Hawaii (2013);New Mexico (state judicial order 2013); Illinois (law June 2014); Oregon (judicial decree June 2014), Pennsylvania (judicial decree 2014), Indiana (judicial order 2014). – plus the District of Columbia (2010), +8 (of 566) U.S. Indian tribes - the Coquille, Suquamish, Odawa Tribes, Santa Ysabel, and Pokagon Band of Potawatomi Tribe, Colville, Cheyenne and Arapaho Tribes of Oklahoma, and Leech Lake Tribal Council. Pending Litigation/Appeals: Challenges to laws barring SSM are pending in every state with such laws. See, e.g., Utah (2013 order, stayed on appeal); Oklahoma (2014 order, stayed on appeal),Ohio (2014, stayed on appeal), Kentucky (2014, stayed on appeal), Virginia (2014, stayed on appeal), Texas(2014, stayed on appeal), Michigan (March 2013), Idaho, Oregon, Pennsylvania, Wisconsin, Arkansas, and Tennessee (injunction pending challenge to TN marriage law). Same-Sex Civil Unions Equivalent to Marriage Legal in Three (3) Additional US States: Oregon (2008), Nevada (2009), & Colorado (2013) (+ some states with SSM). Same-Sex Unions Registry & Specific, Limited Benefits in One (1) Additional US Jurisdiction Wisconsin. Some States with SSM or CU also allows limited benefit relations – HI (1997). Soruces: NCSL, Same Sex Marriage Laws, http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx (seen 3 July 2014); Defining Marriage: State Defense of Marriage Laws and Same-Sex Marriage, available at http://www.ncsl.org/research/human-services/same-sex-marriage-overview.aspx(seen 3 July 2014).
B. Legal Rejection of Same-Sex Unions in the USA: Same-Sex Marriage Prohibited by State Constitutional Amendment (SMA) Adopted Voters in Thirty-one (31) States (60%)(including CA - disregarded by court, and HI where amendment gave legislative control): Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Hawaii,# Idaho, Kentucky, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wisconsin. (#ssm approved by legisla / const’l amend) Same-Sex Civil Unions Equivalent to Marriage Prohibited by State Constitutional Amendment in Twenty (20) USA States (40%): Alabama, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and Wisconsin. The total vote rejecting same-sex marriage in votes on the 31 state marriage amendments combined was over61% (as of November 2012). Same-Sex Marriage Prohibited Without Constitutional Amendment (by statute or common law) in Thirteen (13) Additional States. SMA passed in May 2012 in NC (61%); SMA rejected for first time by voters in MN in 2012; initiatives or referenda legalizing SSM approved by voters in ME, MD, and WA in 2012.). Voters have constitutionally banned SSM in 31 states by adopting SMAs. (In AZ voters first rejected SMA in 2006 then approved SMA in 2008; in ME voters first rejected SSM in 2009 then approved in 2012). In 17 of the 26 “blue states” that voted for Obama in 2012 only male-female marriage was then legal: Hawaii, California, Oregon, Nevada, Colorado, New Mexico, Minnesota, Wisconsin, Illinois, Michigan, Ohio, Pennsylvania, Rhode Island, New Jersey, Delaware, Virginia, and Florida. Bill to legalize SSM in IL fails 130530. In 2008 voters in California passed Prop 8 a constitutional amendment barring SSM but it was ruled unconstitutional in a dubious by a federal district court opinion. State officials refused to appeal and the Supreme Court of the United States ruled that the sponsors of Prop 8 lacked standing to appeal. Hollingsworth v. Perry, 5700 U.S. __ (2013).
Three Types of State Marriage State Marriage Amendments Nine SMAs Protect Status of Marriage*: AK, AZ, CO, MS, MO, MN, NV, OR, TN E.g., “To be valid or recognized in this State, a marriage may exist only between one man and one woman.” Alaska Const., Art. I, sec. 25 (1998) * So did California until Perry decision of district court that the SCOTUS let stand Twenty SMAs Protect Substance of Marriage (Forbid Giving Equivalent Substance to DPs or CUs): AL, AR, FL, GA, ID, KS, KY, LA, MI, NB, NC ND, OH, OK, SC, SD, TX, UT, VI, WI E.g., “Marriage consists only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.”Utah Const., Art. I, sec. 29 (2004) One SMA Protects Government Structure to define marr (Legisla. Can Ban SSM): HI: “The Legislature shall have the power to reserve marriage to opposite-sex couples.” Haw. Const., Art. I, sec. 23 (1998)
December 20, 2013 – March 21, 2014: Legalization of same-sex marriage by judicial decree in 8 states (apps pending) Legalizing SSM: Judges appointed by Dems: 6 Judges appointed by Republicans: 2 Rejecting SSM: Judges appointed by Dems: 0 Judges appointed by Republicans: l* The number of District Judges appointed by Dem/GOP was equal (11/1/2013) Six different federal district court judges have ruled recently (between December 20, 2013 and April 1, 2014) that states marriage laws that do not allow same-sex marriage violate the U.S. Constitution. Five of the six judges who mandated states to legalize same-sex marriage in these cases were appointed by Democrat Presidents (Obama and Clinton); one was appointed by a Republican President (Bush I). The cases were, in Utah (Robert J. Shelby- Obama), Ohio (Timothy S. Black - Obama), Oklahoma (Terence Kern- Clinton), Kentucky (John G. Heyburn II- Bush I, comity), Virginia (Arenda L. Wright Allen- Obama), and Texas (Orlando L. Garcia- Clinton). Then, on March 14, 2014, in Tennessee, a U.S. District Judge (Aleta A. Trauge - Clinton) ruled that Tennessee must recognize the out-of-state marriages of three same-sex couples while they pursue a lawsuit attempting to overturn Tennessee’s dual-gender marriage law. Additionally, on March 21, 2014, in Michigan a U.S. District Judge (Bernard A. Friedman - Reagan) struck down Michigans dual-gender marriage law. Appeals pending. However, in March, another federal Judge (Barbara Crabb-Carter) in Wisconsin refused to enjoin the state's ban on same-sex marriage pending outcome of a trial; in June she struck down the state’s ban on SSM; but after a few days she stayed her ruling pending appeal.) So the political dimension of the judicial trend to force states to legalize same-sex marriage is not insignificant.
C. Legal Allowance of Same-Sex Unions Globally (of 193 Sovereign Nations / UN): Same-Sex Marriage Generally Legalized in up to Eighteen (18) of 193 Nations (less than 10%)*: The Netherlands (2001), Belgium (2003), Canada (2005), Spain (2005), South Africa* (2006), Norway (2009), Sweden (2009), Portugal (2010), Iceland (2010), Argentina (2010), Denmark (2012), Uruguay (2013), New Zealand (2013), France (2013), Brazil* (2013), UK (England/Wales) (effective Spring 2014); Scotland (effective Fall 2014); Luxembourg (effective January 2015). (Also in some particular sub-jurisdictions, municipalities, or states in, e.g., Mexico and the USA) Categorization of some nations is difficult. For example, South Africa legalized “Civil Unions” which can be can be created by way of “marriage” and can be called “marriages,” but the Marriage Act was not amended and still only allows male-female marriage. See Civil Union Act 17 of 2006(s. Afr.) (available at: http://www.info.gov.za/view/DownloadFileAction?id=67843). Likewise, same-sex marriage is permitted in Brazil in 10 of 26 states, and since May 2013 civil registrars were directed to perform same-sex marriages, but the legal status of that directive of the National Judicial Council is debatable. SSM is allowed in sub-jurisdictions of some other nations (e.g., thirteen states in the USA, Mexico (City). (# = law passed but not yet in effect). See uxembourg approves same sex marriage, Yahoo! News (18 June 2014), available at http://news.yahoo.com/luxembourg-approves-same-sex-marriage-203510157.html (seen 18 June 2014). Same-Sex Non-Marital Unions Mostly Equivalent to Marriage Allowed in Eleven* (11) Other Nations (of 193): Ecuador, Finland, Germany, Luxembourg, Slovenia, Andorra, Switzerland, Australia, Austria, Ireland, Liechtenstein. Same-Sex Partnerships (Formal, Limited but Not Equal to Marriage) Allowed in at least Five (5) More Nations: Columbia, Croatia, Czech Republic, Hungary, Israel. See The Pew Forum on Religion & Public Life, Gay Marriage Around the World, Feb. 8, 2013, available at http://www.pewforum.org/Gay-Marriage-and-Homosexuality/Gay-Marriage-Around-the-World-2013.aspx (seen 130214). The British House of Commons voted to legalize SSM on Feb. 5, 2013. It is expected to pass another vote in the House of Commons and in the House of Lords by Summer 2013. Id. Categorization of some nations is difficult. For example, South Africa legalized “Civil Unions” which can be can be created by way of “marriage” and can be called “marriages,” but the Marriage Act was not amended and still only allows male-female marriage. See Civil Union Act 17 of 2006(s. Afr.) (available at: http://www.info.gov.za/view/DownloadFileAction?id=67843). Likewise, same-sex marriage is permitted in Brazil in 10 of 26 states, and since May 2013 civil registrars were directed to perform same-sex marriages, but the legal status of that directive of the National Judicial Council is debatable. SSM is allowed in sub-jurisdictions of some other nations (e.g., thirteen states in the USA, Mexico (City). (# = law passed but not yet in effect) See note re: SSM/CUs in South Africa and Brazil. Some nations with SSM also allow SSCUs. Some local jurisdictions as Greenland & in some states or provinces in Mexico, the USA, & Venezuela allow SSCUs.
Map of SSM in the World DARK BLUE: Marriage open to same-sex couples (ring = individual cases) 1 GREEN: Recognized when performed in certain other jurisdictions (ring=)) YELLOW: Government/court announced intention to legalize (ring) GREY: Federal recognition of marriages at the state level LIGHTEST BLUE: Civil unions MEDIUM BLUE: Unregistered cohabitation GREY: Same-sex unions not legally recognized (Colors higher in the list override those lower down.)1Includes laws that haven't gone into effect.
D. Legal Rejection of Same-Sex Marriage Globally: Same-Sex Marriage NOT Allowed in 175 Sovereign Nations (all but 18 noted above). At Least Forty-six (46) of 193 Sovereign Nations (24%) Have Constitutional Provisions Explicitly or Implicitly Defining Marriage as Union of Man and Woman (Prohibiting SSM): Constitutions of: Armenia (art. 32), Azerbaijan (art. 34), Belarus (art. 32), Bolivia (art. 63), Brazil (art. 226), Bulgaria (art. 46), Burkina Faso (art. 23), Burundi (art. 29), Cambodia (art. 45), China (art. 49), Columbia (art. 42), Cuba (art. 43), Democratic Republic of Congo (art. 40), Ecuador (art. 38), Eritrea (art. 22), Ethiopia (art. 34), Gambia (art. 27), Honduras (art. 112), Hungary (art. M, Constitution/Basic Law of Hungary (25 April 2011) (effective Jan. 2012); Japan (art. 24), Latvia (art. 110 - Dec. 2005), Lithuania (art. 31), Malawi (art. 22), Moldova (art. 48), Mongolia (art. 16), Montenegro (art. 71), Namibia (art. 14), Nicaragua (art. 72), Panama (art. 58), Paraguay (arts. 49, 51, 52), Peru (art. 5), Poland (art. 18), Romania (art. 44), Rwanda (art. 26), Serbia (art. 62), Seychelles (art. 32), Somalia (art. 2.7, draft Constitution 2012); Sudan (art. 15), Suriname (art. 35), Swaziland Constitution (art. 27), Tajikistan (art. 33), Turkmenistan (art. 25), Uganda (art. 31), Ukraine (ark. 51), Venezuela (art. 77), Vietnam (art. 64). (At least 12 of these imply dual-gender (“men and women have/may”).) See also Hong Kong Bill of Rights of 1991 (art. 19); Spain (art. 32, but 2005 SSM law upheld Nov 2012 anyway). Examples: Article 24, Constitution of Japan: “Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis. . . .” Article 110, Constitution of Latvia: “The State shall protect and support marriage—a union between a man and a woman,…” Article 42, Constitution of Columbia: the family “is formed . . . by the free decision of a man and woman to contract matrimony . . . .” Uganda Constitution, Art. 31: “Marriage between persons of the same sex is prohibited.” Nigeria passed a law criminalizing SSM on May 30, 2013 - (http://jurist.org/paperchase/2013/05/nigeria-house-approves-bill-criminalizing-same-sex-marriage.php) . Homosexual conduct is illegal in 87 globally - 37 in Africa + 50 other nations globally. http://www.globalequality.org/component/content/article/166 (130601).
II. Driving Forces Behind And Against the Legalization of Same-Sex Marriage A. Legitimate Influences, Factors and Processes Popular initiative, referenda, & legislation B. Illegitimate Influences Factors and Processes Judicial legislation (ala Roe), coercion, intimidation, Abuse of power (esp. government, e.g. Executive & Judicial Decrees • Opposing Influences, Factors and Processes Traditional Faith Communities- RC, Evang, LDS Conservative Political Groups – Advocates Critical Key – Responsible Advocates/Advocacy ONLY
CHANGING ATTITUDES & AGING As people mature, their attitudes generally moderate and become more conservative (pro-marital family). As birth rates continue to fall or plateau at a very low level, the proportion of society that consists of persons in the youth and younger adult ages will diminish.
III. Reason and Same-Sex Marriage: Some of the Best Arguments Pro- and Con- • Some of the Best Arguments for Same-Sex Marriage Marriage is Drained of Meaning in Culture & Law High Divorce & Cohabitation & CBOW Rates • Some of the Best Arguments Against Same-Sex Marriage Marriage Matters Mightily for Society & Families The Consequences for Children Are Not Certain – but Many Indications Suggest Significant Detriment
The “Collateral Damage” to Children and Families from Legalizing Same-Sex Marriage • 1) Demography online Study published in late 2012 by 3 Economists, Professors Douglas W. Allen, Catherine Pakaluk, and Joseph Price re-examined a study published in 2010 by Professor Michael J. Rosenfeld that had concluded that school progress by children raised by same-sex couples was statistically indistinguishable from the progress made by children raised by heterosexual married couples. Professors Allen, Pakaluk and Price re-ran the study and found that children raised by same-sex parents were 26% to 35% more likely to not make the same normal school progress as children raised by married heterosexual parents. • 2) Another 2012 study, by Daniel Potter, published in the Journal of Marriage and Family reported that children raised by same-sex parent families scored lower on Math assessment tests than their peers raised in married, biological-parent homes. • 3) A 2013 study Douglas W. Allen, High school graduation rates among children of same-sex households, 10 Rev. Econ. Household 1007 (Sept. 2013), based on a 20% sample of the 2006 Census relevant population in Canada found that children raised by gay and lesbian couples are only about 65% as likely to graduate from high school as children from married, opposite-sex couples.
In 2012 an extensive study by University of Texas Sociologist Mark Regnerus found that children of mothers who had same-sex relationships were significantly disadvantaged as young adults on 25 of the 40 child outcome measures (63%), compared to children who spent their entire childhood with both their married, biological parents. Regnerus has been villified and abused tremendously for this. Mark Regnerus, How Different at the Adult Children …,41 Social Sci. Res. 752 (June 2012)
IV. DOMA – A Brief Introduction Enacted by Congress 1996 (85% support, both parties) Signed by President Clinton “Section 2 POWERS RESERVED TO THE STATES.” codified at 28 USCA S 1738C "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.“ Section 3. DEFINITION OF MARRIAGE. Codified at 1 USCA S 7 "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." Section 3 was declared unconstitutional in Windsor. Section 3 was enacted pursuant to Congress’ Art 1 power; Section 2 per Art IV power.
U.S. v. Windsor, 570 U.S. 12(June 26, 2013) (DOMA Section 3 defining marriage for all fed law case) The vote was 5-4. There were four opinions: The majority opinion (by Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan); and Three dissenting opinions by Chief Justice Roberts (alone); by Justice Scalia (joined by Justice Thomas and in part by Chief Justice Roberts); and by Justice Alito (joined in part by Justice Thomas). The majority opinion contained much broad rationale and heavy rhetoric, and lots of pejorative language, but in the end made a relatively narrow and specific holding: § 3 of DOMA (defining marriage as male-female only) applicable to 1,000 federal laws was over-broad. State authority to regulate marriage (family law federalism) normally should be respected/recognized by Congress.
Windsor: Promoting Same-Sex Marriage in Both State and Federal Law In Windsor, the Court invalidated a provision of federal law, Section 3 of the Defense of Marriage Act (herein “DOMA”) which amended the “Dictionary” section of the Federal Code (1 U.S.C.) by adding Section 7, providing that: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
A. Windsor and Some of Its Flaws In United States v. Windsor, 570 U.S. 12 (2013), the Supreme Court affirmed the rulings of two lower federal courts (a district court judgment, affirmed on appeal) granting injunctive relief to Edith Windsor. Ms Windsor had married another woman in Canada; that foreign same-sex marriage was deemed valid in New York. But per DOMA the U.S. (IRS) refused to recognize the same-sex marriage for tax purposes. Ms. Windsor paid the tax and appealed.
The majority opinion in Windsor contains four parts. Part I recounted the history of the case. In Part II addressed whether the case was properly before it for review. Some opponents of DOMA argued that the appeal was non-justiciable because President Obama refused to defend the law. However, because the congressional Bipartisan Legal Advisory Group (BLAC) stepped up to defend DOMA, and because the congressional members of BLAG had sufficient interest in the issue and adequate adversarial competence, the Court concluded that there was a genuine “case and controversy” among interested parties.
On the merits, Part III asserted that DOMA §3 violated the principles of federalism in family law. The court emphasized the primacy of state authority in regulating domestic relations; regulation of marriage is a matter “reserved to the States.” DOMA §3 was an “unusual deviation from the traditional principles of recognizing and accepting state definitions of marriage” for purposes of federal law. (Federalism in Family Law)
Part IV of Justice Kennedy’s majority opinion in Windsor found DOMA §3 an unconstitutional violation of “equal liberty” under the due process provision of the Fifth Amendment, especially (possible specifically) in the context of federalism principles. Denial in federal law of marital status conferred by state law was a deprivation of “an essential part of the liberty protected by the Fifth Amendment” because DOMA intentionally “injured” the very class (same-sex couples) that state marriage law in New York sought to protect, in violation of equality principles.
The Court asserted repeatedly that the enactment of Section 3 of Doma was motivated by “animus,” a “desire to harm a politically unpopular group,” to “impose a disadvantage, a separate status, and so a stigma” upon same-sex couples who married. Justice Kennedy asserted that DOMA intended to deny “the equal dignity of same-sex marriages” and wrote “inequality into the entire United States Code.”
Four Justices Dissented in Three Opinions Three dissenting opinions were filed by the four dissenters. Chief Justice Roberts first asserted that the Court lacked jurisdiction to hear the appeal dispute and rebuked the majority for claiming to find a “sinister motive” behind the enactment of DOMA. Justice Scalia’s dissent (joined in part by Thomas and Roberts) also emphasized that the Court lacked jurisdiction to hear the appeal. He further criticized and responded to what he called the majority’s “scatter gun” opinion. On the merits of equality or equal dignity, he asserted that the majority decision’s distorted equal protection principles would later fall like a “second shoe” to require the states to legalize same-sex marriage. As to the majority’s claim that section 3 of DOMA was motivated by “animus,” by a “bare … desire to harm a politically unpopular group,” and for “formally declaring [that] anyone opposed to same-sex marriage [is] an enemy of human decency,” he severely reproved the majority for relying on pejorative labeling instead of legal analysis.
Justice Alito’s dissenting opinion (joined by Justice Thomas in part) emphasized that “the Constitution … does not dictate” whether same-sex marriage must be legalized or recognized, but “leaves the choice to the people, acting through their elected representatives. …”
B. The Inappropriate Use of Demonizing, Pejorative Language in the Windsor Opinion Justice Kennedy’s opinion for the Court in Windsor contains at least two dozen pejorative terms describing the Act and the intents, purposes, and motives of the members of Congress who enacted Section three of DOMA. DOMA and supporters - • “seek to injure” or have caused “injury,” • inflicted “indignity,” • caused “deprivation of an essential . . . liberty,” • had a “desire to harm,” • “imposed a disadvantage,” • had the “avowed purpose . . . to impose a disadvantage,” • to impose “a stigma upon all who enter into same-sex marriages,” • they “interfere[d] with the equal dignity of same-sex marriages,” • intended to “discourage enactment of state same-sex marriage laws,” • and “to restrict the freedom of choice of [same-sex] couples,” • “to put a thumb on the scales,” • to cause persons in same-sex marriages to “be treated as second-class marriages,” • “to impose inequality,” • “contrive[d] to deprive” married couples of their rights and responsibilities,
“diminish[ed] the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect,” • “undermines both the public and private significance of state-sanctioned same-sex marriages,” • declared that same-sex marriages “are unworthy” of recognition in federal law, • made such marriages “second-tier,” • “humiliates tens of thousands of children,” • “have . . . burdened” the lives of same-sex marriage couples, • has brought “financial harm to children of same-sex couples,” • “denies or reduces benefits . . . that are an integral part of family security,” • “divests married same-sex couples of the duties and responsibilities” of marriage, • “demeans,”and “degrades” • “single out” same-sex married persons, • “imposes a disability,” • tells all persons that same-sex marriages are “less worthy,” • and had the “purpose and effect to disparage and injure” same-sex couples allowed to marry in some of the states. This list does not include the use of normal non-pejorative terminology used when a statute is found to be unconstitutional.
Windsor reads like a political tract, as if the Court were trying to motivate law-makers to legalize same-sex marriage without mandating that they do so. • Because of the strong language and broad dicta in Windsor suggesting enthusiasm for the equality of same-sex marriage, it will not be surprising if some judges and other public officials read Windsor very broadly and give it expansive application extending beyond the holding of the case. It seems like Justice Kennedy, the author of the Court (majority) opinion in Windsor,hoped that his broad language would have that penumbral political and judicial effect - going beyond the narrow holding of the case. • Indeed, as of October 15, 2013, there were 29 cases pending in 18 states seeking to legalize same-sex marriage by judicial decree.
Some Concerns about the Nasty Rhetoric in the Windsor opinion The bullying, pejorative verbiage in Justice Kennedy’s majority opinion is unjust, injudicious, demeaning, and provocative. The majority’s haste to attribute “animus” and “desire to harm” or “injure” and other evil motives to the overwhelming majority (over 80% bipartisan support) of the members of Congress (342 members of the House of Representatives voted for DOMA to only 67 who voted against it, and 85 of 100 Senators voted for DOMA), and President Clinton (who signed DOMA into law) is very troubling and legitimates name-calling and personal attacks. The history of the movement for SSM is one of bullying, coercion, and attack upon those who oppose legalizing SSM. That is true in the academy as well as general society. (Count the number of law review articles or professors supporting/opposing SSM, for example. )
First, the verbal assault is off target, the barrage is misdirected, the criticisms are inapt. As Justice Scalia explained: “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements. Second, such language is highly inappropriate in a court opinion, and impairs the credibility and reputation of the Court. Third, such violent language sets the tone and example for all American citizens to follow. (FRC shooting in 2012) Fourth, the strong normative language in the majority Opinion suggests an intent to motivate (pressure) the States to legalize same-sex marriage – to politicize the Court. The Court is trying to influence the political process (perhaps for “legacy” impact purposes).
All Dissenters rejected the name-calling Roberts, J.C. That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising—and hardly enough to support a conclusion that the “principal purpose,” ante, at 2694, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act's principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry. (2696) Scalia (& Thomas) In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that “personhood and dignity” in the first place.Ante, at 2696. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court's declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples . . . . (2710) Alito (& Thomas) Acceptance of the [appellee’s] argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools. (2718)
C. Name-Calling is Contagious On July 1, 2014, Federal District Judge John G. Heyburn II, a George H. W. Bush appointee, issued an opinion invalidating Kentucky’s ban on same-sex marriage. “These arguments [that marriage should be only between a man and a woman],” he wrote, “are not those of serious people,” calling them “at best illogical and even bewildering.” He could think of “no other conceivable legitimate reason” for Kentucky’s laws banning same-sex marriage. (He also held that “homosexual persons constitute a quasi-suspect class” and thus, heightened scrutiny must apply.) Apparently, millenia of social and legal history and the status of contemporary marriage laws in over 90% of the nations of the world do not amount to logical or legitimate reasons.
United States v. Windsor, 570 U.S. 12 (2013), is the first (big) step to judicially compel states to legalize same-sex marriages. Kenney’s opinion reads like a political pep rally tract for SSM. Lower courts have read it that way. Administrative burden/convenience of disparate treatment in federal/state laws will give incentive to legalize same-sex marriage. Pejorative and prejudicial treatment by the Court and courts will pressure states to legalize same-sex marriage. The Court would prefer to avoid a direct Roe-like ruling mandating legalization of same-sex marriage. But it wants to encourage state legislatures and courts (and, secondarily, lower federal courts) to legalize SSM. However, if necessary, the Supreme Court eventually will drop the “second shoe” and compel reluctant states to legalize same-sex marriage, as Scalia predicted.
Effects of Legalizing SSM on Religious Liberty Religious Liberty is Threatened
Windsor Has Had Serious and Immediately Detrimental Impact Upon Religious Liberty • in July, it was reported that a Colorado baker who refused to bake a wedding cake for a gay wedding faced up to a year in jail and civil damages. • In 2013, the New Mexico Supreme Court affirmed a ruling that a private, Christian photographer who, for reasons of personal religious conscience, turned down a request to photograph a lesbian commitment ceremony was liable for $6,637.94 in attorneys for violating the state anti-discrimination law. • In September, an Oregon bakery that declined on religious grounds to bake a wedding cake for a same-sex wedding closed; the lesbian who made requested the cake filed a complaint and the bakery was being investigated by the state for an alleged violation of the Oregon Equality Act.
Loss of Religious Liberty Due to SSM • In Massachusetts, after same-sex marriage was legalized there, “at least twelve dissenting . . . justices of the peace [were] forced to resign for refusing to perform same-sex marriages despite their willingness to continue solemnizing husband-wife marriages.” • In California: Some county clerks tried to accommodate deputy clerks who objecting personally to issuing SSM marriage licenses. In San Diego County: 24/112 marriage employees objected. An LA Times survey of all 58 California counties: 23 counties allowed employees to opt out of officiating; 35 counties did not allow opt out. • Catholic Charities in Massachusetts, Illinois, and the District of Columbia ceased providing adoption services when laws mandates SSC adoptions. • In June 2014 LDS Social Services announced that it was stopping adoption (but will do adoption counseling). • ElanePhotography LLC v. Willock, NM Supreme Court held (2013) that a Christian photographer who declined on reasons of religious beliefs to shoot a lesbian commitment ceremony had not religious liberty defense to a complaint filed under the state non-discrimination law by the lesbian potential clients.
Loss of Religious Liberty Due to SSM • -Litigation has resulted from church-affiliated charitable organizations refusing to recognize same-sex couples as married for purpose of eligibility for student housing and refusing to recognize same-sex couples for purposes of “family” membership status • -The California Supreme Court ruled against a clinic and Catholic doctors who declined on grounds of religious conviction s to give assisted reproduction services to a lesbian even though they referred her to another physician. The court rejected their defense of free exercise of religion and freedom of expression • Religious Liberty exemptions to SSM laws are narrow, shallow, and inadequate. (Robin Fretwell Wilson’s articles.)