Monday, May 29, 2006

The Shadow of Equality Looms

In the Chicago Tribune, Pepperdine Law Professor Douglas Kmiec warns that allowing gay marriage will eventually expand into forcing churches to perform them, under pain of legal sanction. He provides two supporting examples: the backlash against the Boy Scouts, and the marginalization of racists in American society:
With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

Now, whenever I hear this "we'll be treated just like racists!" argument, my first inclination is that the complaining party might reflect as to why the comparison to racism is so easy to make. I think a little humility in the face of that accusation may be in order. But let that slide for now. There are some points to be had here, but even if Kmiec's worst-case scenario occurs (and I doubt it will), he's overstating his case.

Commenting on Kmiec's article, Dominico Bettinelli claims that this is about legally mandating that churches perform gay marriage. But while it's clear that this is the impression Kmiec wants to give, his argument doesn't actually show that (for good reason, there is no way that would pass free exercise muster). What it does show is that there is some risk that Churches which don't perform gay marriages will lose their tax-exempt status. That's definitely coercive (although no more so than what anti-gay advocates celebrated in the FAIR v. Rumsfeld decision), but it's not the same as compulsory.

But I'll agree that losing tax-exempt status is not exactly a neutral pose, so what about it? Well, first of all, contrary to what Bettinelli says, it is virtually impossible to imagine that it would be a judge who made this decision, as tax decisions are nearly always kept to the legislature. Even Kmiec concedes that it would take a State Attorney General to issue an opinion leading to a revocation of tax-exempt status. Gay equality advocates have enough trouble securing their own rights in the democratic forum, what are the odds that they'll be able to attack others with any success? Incidentally, I want to pre-empt a response to this that is sure to piss me off: saying that judges will do it because judges don't care about the law. I think that the really sloppy legal analysis by Bettinelli (not Kmiec) comes out of a misguided belief that law does not matter to (liberal) judges, so they'll just do whatever their (evil) hearts desire. This just isn't true. To be sure, liberal judges have different interpretive techniques, ones that conservatives find to be illegitimate. But they are still constrained and are not free to do whatever they want. Duncan Kennedy, perhaps the most prominent member of the Critical Legal Studies movement (and thus far less likely to feel constrained by conventional legal restrictions that probably any judge on the federal bench) still ticks off several factors that would prevent him from just doing whatever he likes on the bench:
First, I see myself as having promised some diffuse public that I will "decide according to law," and it is clear to me that a minimum meaning of this pledge is that I won't do things for which I don't have a good legal argument....

Second, various people in my community will sanction me severely if I do not offer a good legal argument for my action....

Third, I want my position to stick....

Fourth, by engaging in legal argument I can shape the outcomes of future cases and influence popular consciousness about what kinds of action are legitimate....

Fifth, every case is part of my life-project of being a liberal activist judge. What I do in this case will affect my ability to do things in other cases, enhancing or diminishing my legal and political credibility as well as my technical reputation with the various constituencies that will notice....

Sixth, since I see legal argument as a branch of ethical argument, I would like to know for my own purposes how my position looks translated into this particular ethical medium. [Duncan Kennedy, Imagining a Judge's Reasoning Process, in ANALYTIC JURISPRUDENCE ANTHOLOGY 208-209 (Anthony D'Amato ed., 1996)]

To reiterate, there is not a single judge on the federal bench that would take even this radical a view. Most others feel bound to some extent by precedent, by prevailing legal norms, by constitutional traditions, and by a commitment to protecting rights (which in this case includes the right of religious majorities to practice their belief system as it sees fit).

But I digress. Okay, let's assume that a state attorney general or legislature does pass such a restriction. What then? Well, I probably would not vote for such a law. And as a judge, I'd probably strike it down as unconstitutionally impinging on the free exercise clause. But since I am neither a legislator nor a judge, that isn't a huge barrier to hurdle. What would the upshot of such a law be? It would merely hold that organizations who discriminate against free and equal members of the polity can not lay claim to the succor of a state committed to the equal status of its citizenry. I really have a hard time getting riled up about that. Bettinelli complains that:
As we have seen it is not enough, according to liberal activists, to have an absence of active persecution or oppression. Anything less than full-fledged love and admiration for their particular lifestyle choice will be seen as hate-speech, racism, or whatever other disparagement can be thrown our way. What they want is approval and acceptance.

Okay, so what? Not giving acceptance to homosexuality is not racism, but it is homophobia, and hateful toward homosexual[s/ity]. There really is not any dodging that, and the fact that Bettinelli feels compelled to try means he's already lost his argument. Blacks shouldn't have to settle for not being actively persecuted, they have the right to demand full and equal acceptance in the American community. When this is denied (even in the absence of legal barriers), we rightfully call it racism. There is no reason this shouldn't be true of homosexuality. And if the Christian right wishes to hitch itself to that train, then it is going to have to admit forthrightly that it is discriminating, that in that respect it is breaching one of America's core values, and that it feels sufficiently strong about this commitment that it is willing to accept the consequences.

Ultimately, the argument being presented here is one that likely never will come into being, would probably not survive court muster even if it did, and would not be particularly onerous even if it survived. Spare me the apocalyptic rhetoric, please.

Ultimate Heads Up: Southern Appeal.

10 comments:

Mark said...

Uhm, David, you are aware that there were motions to force Catholic adoption agencies to place children with gay couples. How is that so different?

Don't get me wrong, I'm not willing to argue that the Catholic position is the correct one from a theological perspective ... but I'm curious ... would you as a judge vote to strike that down as a violation of free exercise?

Steve Dillard (aka Feddie) said...

The comparison to racisim is just plain silly. Even assuming that gays "are just born that way," the bottom line is that they still have the ability to choose (or choose not) to engage in homosexual behavior. Being black (or female), in contrast, is not a choice.

David Schraub said...

Mark: Assuming the state was operating under the typical "best interest of the child" procedure, I would vote to uphold such a law. Insuring that a child grows up in the best permanent loving home possible is the archeotype of a compelling government interest. There isn't an analogous interest in mandating marraige ceremonies.

Feddie: Fine, play it your way. I'm SURE you can think of an aspect of one's identity, which, while perhaps technically a choice (or at least a choice to engage in the activity), is integral to your conception of your own personhood and should protected from state-sponsored discrimination.

It's called religion.

The probligo said...

Why is this so difficult?

Is it because the homosexual community is insisting that their "marriage" be religious as well? Is it because the homosexual community is pushing for the direct, compulsory involvement of their church?

Or is it just the churches doing their utmost (as they did in NZ) to prevent the recognition of any form of relationship other than the Christian version of marriage?

I do not know the legal situation in US at all.

In NZ a Hindu couple (as an example) could have their traditional wedding. But that did not create a legal marriage until they went to the Registry and undertook a "Statutory Marriage" which was entirely based upon the Christian marriage service. Two "ceremonies" to achieve one objective.

What happens with "custom marriages" in the US? Are they recognised by the State and by law?

Again in NZ, there are people (my son falls into this category) who choose not to have a Christian wedding, but who would like there to be official recognition of his relationship with his partner. At the moment, under the law that existed when I was 30 he would be "co-habiting" and would be described as having a "de facto" relationship.

What are the rights of a de facto couple, compared with those of a married couple? If the de facto relationship breaks down, is the law of marriage divorce applied, or do they just walk away?

Why is it so difficult that it seems impossible to have a secular recognition of the relationship between two people. Recognition by the community, by the state, and by law of that relationship leaving all and any religious baggage at the door?

Surely the "right" is being able to choose; not to have one or other or both made compulsory.

NZ has the "Civil Unions Act" which does just that.

So simple!

Steve Dillard (aka Feddie) said...

David-

Not all behavior is equally useful to society. Religion is unquestionably important to the social fabric (see, e.g., the First Amendment). Homosexual behavior is not.

Jack-

Unlike homosexual behavior, heterosexual behavior has a procreative function, which is kind of important to maintaining civilization. You can't really say that about homosexual behavior, now can you?

Steve Dillard (aka Feddie) said...

Holly-

Surely, you jest.

Our collective fashion sense might be a bit duller, but civilization progressed quite nicely during the "closet" years.

Anonymous said...

Feddie - think of it this way:

Most people have a career, whether it's homemaker, CEO, painter or somewhere in between. We all have a reason to get out of bed in the morning and go about our lives. Some might argue that the artist isn't really essential to continuing civilization or that his contribution is less important than the stay-at-home mom or the businessman. But would you argue that because it is less useful, the artist's choice of profession should be outlawed?

Gay marriage is a similar prospect. It really only benefits the gay community to allow it (just as art only benefits those who appreciate and create it). But it doesn't harm anyone or anything else - it simply allows for two people to take advantage of the same benefits (tax breaks, legal rights, etc.) as any other taxpaying heterosexual couple. So maybe the businessman and his homemaker wife contibute something more tangible to society (taxable income and healthy kids), but should that automatically make the gay man or the artist a second-class citizen? Should people be given rights based on how useful they are?

Steve Dillard (aka Feddie) said...

Anon-

I would disagree with your assertion that gay marriage "doesn't harm anyone or anything else . . . ."

Indeed, I think the recognition of gay marriage will have a profoundly negative effect on the social fabric of our republic.

The problem is that you and many of the commenters here have bought into this notion of radical individualism, i.e., that nothing matters beyond our own personal desires and happiness. But that is a false and dangerous construct. Take, for example, the damage inflicted on society by no-fault divorce laws and widespread acceptance/use of birth control. The individual decisions people make in these situations (and with abortion, euthanasia, etc.) have a profound impact on society. No man is an island, right?

Look, I am actually quite sympathetic to some of the legal rights gay people seek, and I would be more than willing to sign off on some of them (e.g., hospital visitation). But with gay marriage, gays are not just asking for tolerance, they are demanding for their relationship to be treated as the equal of a traditional marriage, and I find that deeply offensive.

Gay marriage is a contradiction in terms. As Professor Ely once remarked about substantive due process, "kind of like green pastel redness."

Marriage is what it is, notwithstanding the serious damage inflicted upon the institution by heterosexuals over the years. And gays are simply not capable of being married. It is against the natural design, and of no societal benefit. The fight for gay marriage is nothing more than gays demanding that society approve of their behavior, which, as the Church notes, is "intrinsically disordered." That is something I am simply not willing to do.

Gays don't need be told that what they are doing is acceptable. They need to be loving told that the behavior in which they choose to engage is harmful to both themselves and society.

Recognizing gay marriage only permits gays to further delude themselves into believing that they don't need help, when they clearly do.

Steve Dillard (aka Feddie) said...

Jack-

All you've done is proven my point: Homosexual behavior is against the natural design.

Also, the bigotry card can be played from my side as well. Demanding Catholic charities/churches to comply with anti-discrimination laws against gays is nothing but bigotry against Catholics. The Catholic Church has taught for 2,000 years that homosexual behavior is gravely and intrinsically disordered, and now the state is going to force Catholics into acknowledging otherwise? Just who is being the bigot here? Oh, and last time I checked, the Free Exercise Clause protected my religious beliefs. I don't recall seeing anything in the Constitution about a constitutional right to engage in homosexual behavior.

Oh, and nice Hitler reference. I am surprised you didn't throw it out earlier. Well played.

Steve Dillard (aka Feddie) said...

"Why won't you choose to refrain from heterosexual activity for the rest of your life?"

Ah, if you were a real Catholic you would know the answer to this question.

Also, there are plently of "Catholics" who are hostile to the Church's fundamental teachings (see, e.g., Ted Kennedy). That you claim membership in the Church hardly immunizes you from being called an anti-Catholic bigot.

"Requiring the Catholic church to not discriminate in hiring practices doesn't interfere with the free exercise rights of anyone."

Really? So, if a school run by the Catholic Church doesn't want to hire an avowed homosexual to teach its Old Testament class that's not infringing on anyone's free exercise rights?

"I'm always surprised how people don't recognize arguments when their not spelled out with legal and ethical rhetoric."

I think you mean "logic."

"I'm arguing that grouping people and saying that what they do damages society and so their rights aren't important leads to atrocities"

I know exactly what you're arguing. The problem is that it's a silly position, Mr. Sweeping Pronouncement. What about grouping racists and saying that what they do damages society? How about pedophiles? Polygamists? Are you seriously suggesting that society should never identify a group of people who engage in certain behavior and declare such behavior to be detrimental to society? Surely not.

Also, exactly where do you derive the right to engage in homosexual behavior? From natural law? From a penumbra in the Constitution? I am dying to know the source of this cherished right.