In valiant and desperate attempt to influence the Supreme Court’s review of the Defense of Marriage Act and California’s Proposition 8, the United States Conference of Catholic Bishops (USCCB) has filed two “friend of court briefs” outlining their opposition to same-sex marriage. Both amicus briefs are a mix of historic legal precedents and logic infused with a provincial perspective on the nature of family. The USCCB legal arguments also lean on issues of federalism or states rights which can be contradictory to the Bishops overall vision for the United States to have a definition of life uniform from state to state.
Here are selected arguments I snipped from the text, italicized, and my rebuttal.
USCCB Brief Amicus supporting DOMA, U.S. v Windsor [wpdm_file id=1]
Marriage is a fundamental right?
The Defense of Marriage Act (“DOMA”) does not infringe upon a fundamental right, and involves neither a suspect nor quasi-suspect classification. There is no fundamental right to marry a person of the same sex.
Actually, I don’t think there is a fundamental right to marry any person any more than there is a fundamental right to get a divorce. The issue before the Supreme Court is about the contractual definition of individuals entering into a secular contract. That secular contract, as recognized by governments, just happens to define the participants as has having to be one from of each sex, male and female. There are many contracts that stipulate that persons under the age of 18 can’t be a party to the agreement. Governments don’t recognize the Roman Catholic sacrament of marriage for anything else except the witnessing of agreement between to contractual parties.
Windsor’s involvement in a past homosexual relationship, by contrast, is the product of her own voluntary choice.
Application of heightened scrutiny in this case would not only have a distorting effect on this Court’s equal protection jurisprudence as a whole, but would undermine the defense of state laws that define marriage as the union of one man and one woman, or that otherwise involve a classification based on “sexual orientation.” Such a ruling would compromise the ability of states to accommodate religious and moral objections to homosexual conduct on the part of employers and individuals.
The USCCB argues that a person’s voluntary conduct doesn’t entitle them to any special consideration from the court similar to a person’s race or disability. But voluntary conduct, the pursuit of liberty and happiness, shall not be discriminated against.
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, national origin, race, color, or sex. The last time I checked, the practice of one’s religion was a voluntary choice. States and employers can not accommodate religious or moral objections to a person’s voluntary participation in the religion of their choice.
Title VII requires an employer to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb.
Immutable Characteristic of being human
In contrast to the classes for which this Court has applied heightened scrutiny,10 what lower courts have understood to be a homosexual “orientation” is not a trait attributable from conception or birth. Rather, particularly as framed by Respondents here, it involves a species of conduct.11 See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“Homosexuality is not an immutable characteristic; it is behavioral and hence is fundamentally different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect classes.”);
The Roman Catholic Church continues to stick its head in the sand and deny a person’s sexual orientation is part of their very DNA. From my perspective, it is not that the court should allow gay couples the right of traditional marriage based on their sexual orientation, rather, it should based on the immutable characteristic that they are adult humans capable entering into the secular contract we call marriage.
What is the definition of a family?
Three implications are especially noteworthy.
First, elevation of sexual orientation to a quasi-suspect class would immerse federal courts into a quagmire of family law issues reserved to the states, issues for which the Judicial Branch is not institutionally suited.16
So, is the USCCB now saying that the Supreme Court should not rule on abortion since they aren’t qualified to rule on family law issues? When it comes to basic human rights, the problem has been the fractured individual state rulings leaving the U.S. with no clear consensus on a universal definition of human rights. This is exactly the sort of “family law” case the Supreme Court should rule on so as to set a precedence and guidance for uniform legislation at the state level.
Voluntary choice of privacy
Second, application of heightened scrutiny would hinder the ability of legislatures to create accommodations for those with religious or moral objections to homosexual conduct.17 17 The burdens on religious liberty that would arise from invalidation of Proposition 8,
This argument is just plain absurd. It is never the right of a state to accommodate an employer’s objection to an employee’s voluntary choice to engage in legal activities that doesn’t impair their job performance. They offer no framework on which to measure the objections of homosexual conduct. With respect to their illumination in footnote 17, it is impossible for an employee’s private relationship to infringe on an employer’s religious liberty. Just because you are offended that someone is an atheist does not give you the right to discriminate against them in the work place.
Which one is the Marriage Amendment?
Third, if this Court were to conclude that the Constitution requires a redefinition of marriage to include persons in same-sex relationships—a requirement that we believe cannot reasonably be inferred from the Constitution—it is unclear where the logical stopping point would be. This Court will ultimately be asked why other interpersonal relationships are not entitled to similar inclusion, and why other “barriers” to marriage (such as those posed by youth, kinship, or multiplicity of parties) should not also have to be struck down as inconsistent with this redefinition.
Aside from the fact that the U.S. Constitution mentions nothing about marriage, the Catholic Bishops warn that if the Supreme Court upholds DOMA, polygamy, under-age and brother-sister marriages are next. In short, the world will blow up if same-sex marriage is approved. I believe a similar argument was made when courts were considering whether laws banning inter-racial marriage were constitutional.
The second friend of the court brief
USCCB support of Proposition 8, Hollingsworth v Perry [wpdm_file id=2]
Government wants you to be gay
While this Court has held that laws forbidding private, consensual, homosexual conduct between adults lack a rational basis, it does not follow that the government has a constitutional duty to encourage or endorse such conduct.
I live in California. The state is pretty weird sometimes. But I have never seen a public service announcement encouraging or endorsing any type of sexual activity. The USCCB’s interpretation of that allowing same-sex couples the right to marriage would be an encouragement of homosexual behavior is absurd. That is like saying that if you attend a Roman Catholic Church you condone their cover up of pedophile Priests.
Modern family, modern marriage
Marriage, understood as the union of one man and one woman, is not an historical relic, but a vital and foundational institution of civil society today.
I agree with the USCCB that marriage is not a historical relic and it does have significant merit toward sustaining and strengthening the fabric our our communities. However, it is not the religious aspect of marriage that provides the unique stability and benefits. It is the commitment between two people to nurture and bind their union together that provides the inherent values of marriage. Consequently, it makes no difference whether the marriage is between opposite sex, same sex couples or the Holy vows of abstinence an individual may take. It is about the quality of the relationship and not the legal definition that is ultimately important.
Ban on in vitro fertilization
No other institution ensures that children will at least have the opportunity of being raised by their mother and father together. Societal ills that flow from the dissolution of marriage and family would not be addressed—indeed, they would only be aggravated—were the government to fail to reinforce the union of one man and one woman with the unique encouragement and support it deserves.
With the exception of adoption of a child by a gay couple, this argument is purely a red herring. The last time I checked, gays and lesbians can’t reproduce. If protecting children is paramount to the church, they should work to abolish in vitro fertilization on the part of single women. Perhaps the USCCB should work to introduce legislation outlawing divorce and banning pre-marital sex. They need to work with our society as it exists today and stop yearning for yesterday.
Law based on nature, religion
Proposition 8 is not rendered invalid because some of its supporters were informed by religious or moral considerations. Many, if not most, of the significant social and political movements in our Nation’s history were based on precisely such considerations.
Our religiously enlightened founding fathers who could not see their way forward enough to recognize that black people and white women were equal to the white man. Government laws should not be spawned by religious bigotry and ignorance. The origins of a constitutional right or law, be it religious or otherwise, is of no consequence. The focus needs to be on whether the law supports or restricts a person’s right to liberty and the pursuit of happiness.
I don’t trust politicians to establish my rights
Finally, redefining marriage—particularly as a matter of constitutional law, rather than legislative process—not only threatens principles of federalism and separation of powers, but would have a widespread adverse impact on other constitutional rights, such as the freedoms of religion, conscience, speech, and association.
There are times when the legislative and the referendum process fail to recognize basic levels of fairness and humanity. That is when the ultimate arbiters of questions regarding how the government should engage with individual liberties fall to the Supreme Court.
The USCCB invokes federalism and state’s rights as another reason to uphold Prop 8. By their rational, each state should be able to define marriage as it finds advantageous for its citizens – even if the the USCCB believes same sex marriage should never be recognized. In supporting the concept of federalism, they support a state’s rights to define life.
The tenth amendment, guaranteeing state’s rights in all matters not reserved for the federal government, gave us some states allowing slavery, varying definitions of what constitutes life with respect to abortion and the irony that some states allow the punishment of death for a crime while others do not. At some point the Supreme Court needs to step in and take charge of the room full of kindergarten-like states all acting as their own divine sovereign countries determining the value of human life. The United States has been hobbled in our progress toward full human rights because states have been given the authority to regulate that which is absent from our constitution.
The sky is falling because of gay marriage
Individuals, either directly or as principals of closely-held businesses, are already encountering government obstacles to entering or remaining in their chosen profession18 or in the marketplace, because of their support for marriage as the union of one man and one woman.19 Religiously-affiliated nonprofit organizations now face the prospect of civil suits—previously unavailable before the redefinition of marriage—where the organization, in keeping with its religious and moral beliefs, declines to extend to an employee’s same-sex “spouse” health benefits reserved to married couples.20 Notaries public, court clerks, and justices of the peace with religious and moral objections to same-sex relationships have been forced to give up their positions.21
The sky is falling, the sky is falling cries the USCCB. While there maybe some lawsuits over the current or past handling of same sex marriages at nonprofit organizations, it will be no where near the nightmare created by the Americans with Disabilities Act (ADA). Virtually every small retail establishment and building owner has either been threaten with a law suit or spent thousand of dollars to comply with ADA requirements. Perhaps if the Roman Catholic Church would have allowed their Priests to marry one another they wouldn’t have the lawsuits they have faced with their pedophilia scandals.
With regards to extending health benefits to an employee’s same-sex spouse because of moral or religious beliefs, would the employer not extend the same benefits to the opposite sex spouse if they found out the individual was a: wife beater, felon, pedophile, drug addict, adulterer or some other equally offensive persona? The Catholic Bishops make the fatal error of assuming that in the absence of morally damning evidence to the contrary, all individuals must be fine and upstanding citizens, just like their Priests.
We all face moral dilemmas presented in our occupations. How many gays and lesbians have been forced to quit their jobs because of harassment about their sexual orientation? If any Notaries public, court clerks, and justices of the peace have had to give up their jobs because they don’t want to be a party to same-sex marriages, they have far larger issues in their life that require counseling.
Is it all about the money?
Finally, if the Constitution were construed to require government affirmation of same-sex relationships as marriage, it would seem a short step to requiring such affirmation as a condition of receiving government contracts, participating in public programs, or being eligible for tax exemption.23
Tax exemption…is this the real fear of the Catholic Bishops? Are they concerned that if they rebel against same-sex marriage recognition they will lose their coveted tax exempt status?
The tortured life of a Catholic Bishop
It must be miserable to be a Roman Catholic Bishop. They constantly have to worry about the corrupt nature of our society and government creeping into the arthritic bones of their church. They are consumed with fear of the unknown and desperately trying to maintain the status quo of discrimination. I wonder how they get any work done. What they fail to understand is that same-sex marriage landed on the shores of the United States a long time ago.
It doesn’t really matter that an inept and corrupt government system that clings to discredited religious beliefs recognizes same-sex marriage as a golden contract or not. Same-sex-gay-lesbian-transgender-bi marriage is accepted by family, friends and neighbors. And those are the people who really matter. If the USCCB lecture to the Supreme Court on their preferred definition of marriage carries any weight with the Supreme Court justices we will know that those people are just as out of step with modern America as the Roman Catholic Church.