Same-Sex Marriage in the Supreme Court—Michael J. Perry

Michael J. Perry holds a Robert W. Woodruff University Chair at Emory University, where he teaches in the law school. His most recent book is Human Rights in the Constitutional Law of the United States (Cambridge University Press).

California has already resumed issuing marriage licenses to same-sex couples.  There are now thirteen states that, together with the District of Columbia, grant access to civil marriage to same-sex couples.  That leaves thirty-seven states that still exclude same-sex couples from civil marriage.  Does the exclusion policy violate the constitutional law of the United States—and if so, why?

On June 26, in Hollingsworth v. Perry, the Supreme Court of the United States avoided that question; the Court ruled, five justices to four, that because none of the state officials who ordinarily would defend a state law challenged as unconstitutional were willing to defend the law at issue in the case—California’s Proposition 8, which excluded same-sex couples from civil marriage—and because the citizens in court defending Proposition 8 lacked “standing” to defend it, the Court did not have jurisdiction to decide the case.  The Court thereby left in place (without affirming) the decision of the federal trial court in San Francisco that Proposition 8 violated the Fourteenth Amendment’s guarantee of the equal protection of the laws.

In the other case handed down on June 26, United States v. Windsor, the Court ruled, again five justices to four, both that it had jurisdiction to decide the case and that the Defense of Marriage Act’s exclusion of same-sex marriages from the federal definition of “marriage”, and therefore from the many and various federal benefits granted to married couples, was unconstitutional.  In the majority opinion, Justice Anthony Kennedy, speaking for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan, concluded that DOMA’s exclusion of same-sex marriages violated the equal protection guarantee that the Fifth Amendment’s Due Process Clause, as the Court has long held, makes applicable to the federal government.

DOMA’s exclusion of same-sex marriages violated equal protection, the Court ruled, because the exclusion was based on a demeaning view of same-sex marriages—a view of such marriages as, in the words of the Court, “second-class”:  morally inferior to opposite-sex marriages.  DOMA denied, the Court argued, the very thing affirmed by those states that have decided to grant access to civil marriage to same-sex couples:  “the equal dignity of same-sex marriages”.  As the Court put it, “[t]he differentiation demeans the . . . relationship the State has sought to dignify.  And . . . [t]he law in question makes it even more difficult for the [tens of thousands of children now being raised by same-sex couples] to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

The Supreme Court reached the correct decision in United States v. Windsor, in my judgment, but Justice Kennedy’s opinion for the Court was much less clear than it should have been about why DOMA’s exclusion of same-sex marriages was unconstitutional.

Some persons who oppose same-sex marriage do so on the basis of a worldview according to which gays and lesbians are, as such, inferior human beings.  As the Connecticut Supreme Court has noted, gays and lesbians are often “‘ridiculed, ostracized, despised, demonized and condemned’ merely for being who they are . . .”  However, many who oppose same-sex marriage—including the magisterium of the Catholic Church—do so not on the basis of the view that gays and lesbians are inferior human beings but, instead, on the basis of the judgment that same-sex sexual conduct is immoral.  The pope and bishops of the Catholic Church are leading opponents of “legislative and judicial attempts, both at state and federal levels, to grant same-sex unions the equivalent status and rights of marriage—by naming them marriage, civil unions or by other means.”  Although they believe same-sex sexual conduct to be immoral, the pope and bishops insist that all human beings, gays and lesbians no less than others, are equally beloved children of God.  “[Our teaching] about the dignity of homosexual persons is clear.  They must be accepted with respect, compassion, and sensitivity.  Our respect for them means that we condemn all forms of unjust discrimination, harrassment or abuse.”

Nonetheless, the fundamental basis of the magisterium’s opposition to same-sex marriage is the belief that same-sex sexual conduct is immoral.  According to the magisterium, it is immoral not just for same-sex couples but for anyone and everyone—even a man and a woman who are married to one another—to engage in (i.e., pursuant to a knowing, uncoerced choice to engage in) any sexual conduct that is “inherently nonprocreative”, and same-sex sexual conduct—like contracepted male-female sexual intercourse—is inherently nonprocreative.  Because “[w]hat are called ‘homosexual unions’ . . . are inherently nonprocreative,” declared the Administrative Committee of the U.S. Conference of Catholic Bishops, they “cannot be given the status of marriage.”  As Joseph Cardinal Ratzinger stated in 2003, speaking for the Congregation for the Doctrine of the Faith:  Because they “close the sexual act to the gift of life”, “homosexual acts go against the natural moral law.”

As I explain in my new book, Human Rights in the Constitutional Law of the United States, the internationally recognized human right to religious and moral freedom—or, as many call it, the human right to freedom of conscience—protects one’s freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments.  The right is not unconditional:  Government may interfere with the freedom protected by the right if government satisfies certain conditions.  One of the conditions is that government is acting to protect a legitimate government objective, such as “public safety, order, health, or morals or the fundamental rights and freedoms of others.”  So, “protecting public morals” is undeniably a legitimate government objective under the right to religious and moral freedom.  But what morals count as public morals, under the right?  If government is acting based either on a religious belief that certain conduct is immoral or on a sectarian nonreligious belief that the conduct is immoral, government is not truly acting to protect public morals.  It is acting, instead, to protect sectarian morals, and protecting sectarian morals is not a legitimate government objective under the right to religious and moral freedom.

A religious belief that X (a type of conduct) is immoral is, qua religious, sectarian.  But when is a nonreligious belief that X is immoral sectarian?  Consider what the celebrated American Jesuit John Courtney Murray wrote, in the mid-1960s, in his “Memo to [Boston’s] Cardinal Cushing on Contraception Legislation”:

[T]he practice [contraception], undertaken in the interests of “responsible parenthood,” has received official sanction by many religious groups within the community.  It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right.  The stand taken by these religious groups may be lamentable from the Catholic moral point of view.  But it is decisive from the point of view of law and jurisprudence . . .

We may generalize Murray’s insight:  In a religiously and morally pluralistic democracy, a nonreligious belief that X is immoral has become sectarian if the claim that X is immoral is now widely contested—and in that sense sectarian—among the citizenry.

Although it will not always be obvious which side of the line a particular nonreligious moral belief falls on—sectarian or nonsectarian—often it will be obvious.  As Murray understood and emphasized to Cardinal Cushing, the magisterium’s nonreligious belief that contraception is immoral had clearly become sectarian.  (The magisterium’s belief that contraception is immoral is a nonreligious belief:  a belief—a conclusion—based solely on nonreligious premises:  premises that do not assert, imply, or presuppose that God—or any other transcendent reality—exists.)  By contrast, certain moral beliefs—certain moral norms—are now clearly ecumenical, rather than sectarian, in religiously and morally pluralistic democracies.  Consider, in that regard, what Jocelyn Maclure and Charles Taylor have said, in Secularism and Freedom of Conscience (2011), about “popular sovereignty” and “basic human rights”:

[They] are the constitutive values of liberal and democratic political systems; they provide these systems with their foundation and aims.  Although these values are not neutral, they are legitimate, because it is they that allow citizens espousing very different conceptions of the good to live together in peace.  They allow individuals to be sovereign in their choices of conscience and to define their own life plan while respecting others’ right to do the same.  That is why people with very diverse religious, metaphysical, and secular convictions can share and affirm these constitutive values.  They often arrive at them by very different paths, but they come together to defend them.

The pope and bishops’ position that inherently nonprocreative sexual conduct is, as such, immoral is a sectarian moral position—indeed, a conspicuously sectarian moral position.  It bears emphasis, in that regard, that the position is famously controversial even just among Catholic moral theologians, not to mention among the larger community of religious ethicists.

As the record in United States v. Windsor amply confirmed, DOMA’s exclusion of same-sex marriages was plainly based on—the exclusion would not have been enacted but for—the judgment that same-sex sexual conduct is immoral.  However, there is no discernible support for that judgment other than these two beliefs, each of which is undeniably sectarian:  the religious belief that same-sex sexual conduct is contrary to the will of God and the magisterium’s nonreligious belief that all “inherently nonprocreative” sexual conduct is immoral.  Therefore, the judgment that same-sex sexual conduct is immoral is not a legitimate basis of government policy under the right to religious and moral freedom.

But what has all this to do with the Supreme Court’s opinion in United States v. Windsor?  Is the right to religious and moral freedom part of the constitutional law of the United States?  Indeed it is:  As I explain in my new book, the right—under the (unfortunate) name “the right of privacy”—emerged in 1965, in a case in which the Supreme Court struck down Connecticut’s ban on the distribution of contraceptives to married couples, and the Court has relied on the right, explicitly or implicitly, several times since.

Given some of the language in Justice Kennedy’s opinion—in particular, the language about DOMA’s “demeaning” of same-sex relationships—it was not surprising that in his dissenting opinion, Justice Antonin Scalia read Kennedy’s opinion as in effect saying, in Scalia’s words, “Hate your neighbor or come along with us.”  And because he read Kennedy’s opinion as accusing DOMA’s supporters of demeaning gay and lesbian persons, Scalia was indignant.  Kennedy’s opinion would not have been vulnerable to that reading—it would have been clearer and certainly less offensive to many opponents of same-sex marriage—had the opinion been written to emphasize that the constitutionally fatal problem with DOMA’s exclusion of same-sex marriages was not that the exclusion was based on the demeaning view that gays and lesbians are inferior human beings.  It is insulting to supporters of DOMA’s exclusion, including the U.S. Conference of Catholic Bishops, to suggest that DOMA’s exclusion was based on—that the exclusion would not have been enacted but for—the view that gays and lesbians are inferior human beings.  The constitutionally fatal problem with DOMA’s exclusion of same-sex marriages, as Kennedy’s opinion should have gone out of its way to make crystal clear, was that DOMA’s exclusion was based on (as, again, the record in the case amply confirmed) a moral judgment—a moral judgment that because sectarian, rendered the exclusion policy contrary to the right to religious and moral freedom, a.k.a. “the right of privacy”.

We may fairly adapt language in Father’s Murray’s memo to Cardinal Cushing to say about DOMA’s exclusion of same-sex marriages much the same thing Father Murray said to Cardinal Cushing about Massachusetts’ anti-contraception policy:

Same-sex marriage has received official approval by various religious groups within the community.  It is difficult to see how the state can refuse to countenance, as contrary to public morality, a relationship that numerous religious leaders and other morally upright people approve as morally good.  The stand taken by these religious groups and others may be lamentable from the Catholic moral point of view.  But it is decisive from the point of view of the right to religious and moral freedom.

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An earlier version of this post originally appeared at Commonweal.