Another Observation about Hollingsworth

 

I have been reading again the two marriage decisions issued by the Supreme Court recently, i.e., United States v. Windsor and Hollingsworth v. Perry. Previously, I offered several remarks on Hollingsworth on this site, but now I see a reason to add another thought about the Proposition 8 case, its influence on Windsor, and what Justice Alito said in his dissenting opinion in Windsor.

In Windsor, Justice Alito notes at page 15, footnote 7 of his dissenting opinion that the Brief of the Constitutional and Civil Procedure Professors, amici curiae, asserted in their Hollingsworth brief that Judge Walker’s “factual findings are compelling and should be given significant weight.” This brief continued by stating that “Under any standard of review, this Court [the Supreme Court of the United States] should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts.” [Italics added by RJA sj] Several of these claims by law professors cited by Justice Alito are untenable. Why do I make this observation?

First of all, one of Judge Walker’s findings (with references to the supportive testimony; in particular one deponent’s statement that the “Catholic Church views homosexuality as ‘sinful’”) was that: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Fact Finding, N. 77, p. 101.

The more I consider what these colleagues in the teaching profession have indirectly said about religion (Catholicism, in particular) by urging adoption of Judge Walker’s findings and the shadow that their arguments about his findings cast, I appreciate all the more what Justice Alito said regarding these contentions: “Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.”

I will put aside the issue of sinfulness mentioned in Judge Walker’s findings since I do not think Federal judges or other civil officials should decide whether any act is sin or sinful. Making this determination falls outside of the civil official’s competence. Catholic teaching informs us that any sexual activity—be it hetero- or homosexual—outside of marriage that is the union of one man and one woman is also sinful. But whether this religious belief harms co-habiting male and female partnerships is a dubious claim to make. There are occasions where sin and wrongful doing under the law coincide. For example, lying is a sin. We had a discussion about this at the Mirror of Justice some time ago. But lying, e.g., perjury, is also an offense under the law. In such a case, a court dealing with lying is not looking at the act of lying as a sin but, rather, as an offense against the civil code or common law. While not having the authority to address the sin, the court has the jurisdiction to address the purported crime and civil wrong.

Consequently, judges do have the competence to decide if something is right or wrong, i.e., consistent or not, with human behavior that is a subject of the law. In this context, let me parse the rest of the Judge Walker’s finding, relevant to this posting, that “Religious beliefs that gay and lesbian relationships are… inferior to heterosexual relationships harms gays and lesbians.” The issue of considering inferiority may well fall within the competence of a court as the judge(s) may raise the question of equality, equal protection under the law, and due process when one status may be considered inferior to another. So the next issue to consider is this: how does this matter of “inferiority” harm homosexual couples? Should we consider whether there is a qualitative and objective distinction between the two? Making this consideration is essential to whether or not there really is harm that needs to be addressed by the law.

In order to assess the merits or lack thereof of the inferiority argument, it is essential to consider whether the heterosexual couple and the homosexual couple are different in any meaningful, substantive way. Why? Well, one indisputable fact that did not make it into the findings of fact of the District Court helps shed understanding on the nature of this distinction: the complementarity of the sexes which is manifested in their sexual activity. This is a relevant fact upon which Judge Walker did not comment or recognize in this finding, but there is an implicit assumption in his finding that hetero- and homosexual couples are the same in every respect. But they are not.

But then, one might next ask: why should complementarity matter? It matters because two persons of the opposite sex (and who are of physical, biological maturity) have the capacity or the potential for the capacity to do something which the same-sex couple cannot do. In this regard, the same-sex couple is, in fact, “inferior.” It does not mean that they are necessarily less human or less deserving of legal protection on matters where the fact of complementarity of the sexes is not relevant (e.g., can they be denied the right to register to vote? No.), but when it comes to the issue of sexual complementarity having a bearing on marriage, there is a difference which makes one couple “inferior to”, i.e., different from, the other. As I have argued at the Mirror of Justice and elsewhere before, the accuracy and the truth of this distinction can be demonstrated with the following hypothetical: planet A and planet B are respectively colonized by humans; opposite-sex couples are sent to planet A, and same-sex couples are sent to planet B. I shall assume that neither group has the means of assisted reproductive technologies. In one hundred years we return to both planets. Will both still be populated? The answer is clear: No, only planet A will be. Why? The answer remains in the fact of the distinction between the two kinds of couples. While both kinds may have love and commitment, only those sent to planet A will be able to sustain the human race due to the complementarity of the sexes.

The religious person relying on faith alone might not make this observation; but the religious person who pays attention to objective reason can, does, and must contend that this distinction bears a vital difference between the two kinds of couples. But so can any other person, lay or expert, who makes the distinction based on objective reason that is crucial to rigorous and exacting applications of collecting data and evidence reach the same conclusion about this important difference between same-sex and opposite-sex couples. To contend, as the law professors cited by Justice Alito, that Judge Walker’s finding results “from rigorous and exacting application of the Federal Rules of Evidence, and [is] supported by reliable research and by the unanimous consensus of mainstream social science experts” is suspect, to say the least. While I tend to shy away from language employed by Justice Alito, I do not shy away from the logic and truth that undergirds his point.

The criticism and condemnation of religious persons for asserting that there is a difference between opposite-sex and same-sex couples is wrong; objective reality, which is the subject of “rigorous and exacting” fact-finding, demonstrates without question that those who make this distinction are making a truthful statement that is not only relevant but also vital to the law. To say otherwise is the real harm.

 

RJA sj