Mirror of Justice

Two MOJ-ers, Michael Perry and Rick Garnett, have now written for Commonweal about United States v. Windsor.  Let me add my own thoughts.

Michael says, "Right decision, wrong reason."  I agree with him but disagree in turn with his own reason.  Michael rightly criticizes Kennedy's opinion for reducing all opposition to same-sex marriage (SSM) to "animus" against gays and lesbians or a judgment that they are inferior beings.  Michael nails it when he says that Kennedy's reasoning is in turn "demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution."  Michael's justification for the decision, instead, is that it upholds "the individual's [constitutional] right to moral and religious freedom."  He rests this not on the special importance of marriage as a moral or religious act or relationship for gays and lesbians, but rather on the fact that rejection of SSM fails to qualify as a standard enforcing "public [rather than private] morals" (my emphasis).  Michael says that "if laws are based either on a religious belief that certain conduct is immoral or on the nonreligious belief of a minority—a narrowly held belief that is widely contested—government is not truly acting to protect public morals" (emphasis in original).  Since he says the opposition to SSM is not necessarily religious, his problem with it is that it's "a narrowly held belief that is widely contested."

I disagree with that both as a constitutional standard and as a conclusion on the facts here.  It doesn't seem to me that we have a general constitutional right to personal freedom whenever the reason for restricting that freedom is "widely contested" and can be characterized as "a narrowly held belief."  Michael's new book will no doubt marshal a powerful argument for his position, but it seems to me too close to saying "the Constitution enacts Mr. John Stuart Mill's On Liberty."  As a general approach, I think we need to preserve deference to democratic decisionmaking except when there are particular interests that call for more stringent review.  Moreover, on the facts, it seems to me that although opinions on marriage are changing, the opposite-sex-only view is still far from "narrowly held": it represents the substantial majority in many states, which is far different from the contraception prohibitions, which, when Murray wrote, remained in only two states, where they were usually unenforced.  Michael, given your argument, do you think that Roe and Casey were rightly decided--and rightly decided simply because restrictions on abortion are "widely contested" (without some need to establish that they seriously impose on women's physical autonomy or life plans)?

Instead, I think Windsor was rightly decided but should have rested on the ground--argued in this brief and article, both co-authored by Doug Laycock and me--that some form of heightened scrutiny should apply because DOMA effectively discriminated based on sexual orientation, which should be a semi-suspect classification, and/or because it discriminated against gays and lesbians in the exercise of their fundamental right to marry.  I think these grounds (1) would more honestly describe the review that the Court is applying, and (2) would avoid denigrating nearly half the population by dismissing their traditionalist views of marriage as animus and hatred, but (3) would recognize that the arguments made for excluding same-sex couples from marriage are too speculative to justify the significant unequal effect that the exclusion has on gay and lesbian couples and the children they are raising.

I share Rick's worry that the "animus" ground on which the Court actually relied not only denigrates those holding the traditionalist view, but by doing so increases the threats to religious liberty from the recognition of SSM: by suggesting that opponents "are best regarded as backward and bigoted, unworthy of respect," it "is not likely to generate compromise or accommodation and so it poses a serious challenge to [the] religious freedom" of religious social services, schools, individuals, etc.  Rick, of course, doesn't agree with me that Windsor was rightly decided.  And while Rick, Michael, and I have all argued for accommodations when SSM is recognized, some others would say this is misguided--that the only way to protect religious freedom is to deny SSM altogether, because (as Rick describes their argument) the campaigners for gay marriage are "aggressive and uncompromising."

Laycock and I, in our brief and article, urge that this is not necessary: it's possible to protect both same-sex marriage and religious liberty.  In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples' efforts to live out their deep, pervasive commitments--but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, "aggressive and uncompromising," will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a "live and let live" approach that will protect traditional religious organizations' ability to maintain their identities.