Sunday, June 07, 2009

Legislation Not Court Decisions: Religious Protections

Religious opponents of same-sex marriage worry that if (probably when) same-sex marriage or civil unions become legal, people like them will be prosecuted. This is not far-fetched. "Hate speech" laws could easily be used to prosecute speech, even sermons against gay unions, as they have already been abroad. Religious charities have already stopped placing all adoptions because the state threatened them for not placing children with homosexual couples.

The first few states to legalize same-sex marriage did so by court decisions. These are blunt instruments. They invalidated existing laws without doing the necessary political work to deal with the unintended consequences of the court decision. Now, though, several states are taking the better path, making this major political change through the proper political means, the legislature. When states debate laws, they hear from all kinds of people who would be affected. The states that have passed same-sex marriage laws were able to put in protections for religious groups. Legislative debate, and laws that actually make it through the political process, are better protection for everyone.


Molly said...

First, which "hate speech" laws, in particular, are religious opponents of marriage equality in the US worried about being prosecuted under? The US has a long history of erring on the side of protecting free speech, even when that speech is hateful and prejudicial, in the ongoing balancing act between fighting discrimination and protecting free speech, two goods that are sometimes in conflict. See, for example, the Supreme Court's holding in RAV v. St. Paul. It is worth debating the specifics of any law under which speech is prosecuted, to carefully weigh the legal and moral claims at stake in combatting hate and protecting free political expression, but invoking the specter of nebulous "hate speech" laws as an argument against marriage equality is an insidious tactic used by certain members of anti-equality lobbies to attempt to re-cast themselves as victims.

Second: yes, gaining marriage equality by legislation would be preferable to doing so by court ruling. In general, legislatures rather than courts are the appropriate venues for policy-making. However, when the legislatures fail to uphold the principles of the relevant state constitutions, it is not only the right but the responsibility of the courts to correct those injustices when faced with a case challenging the constitutionality of legislatively-enacted policy. This is the crucial difference between Massachusetts, where the state Supreme Court held that the state was constitutionally barred from denying equal civil marriage rights to same-sex couples (in Goodridge v. Department of Public Health), and similar cases in other states (see Washington or Minnesota), where challenges to DOMA and other discriminatory policies were brought on federal Constitutional grounds and denied. To decry the decisions in Goodridge, Kerrigan (in CT), in re Marriage Cases (pre-Prop 8 CA), or Varnum (IA) because they "invalidated existing laws without doing the necessary political work to deal with the unintended consequences of the court decision" is to criticize courts for ruling in favor of constitutionally-protected equality in the face of wrongly-enacted, discriminatory legislation. Courts can and sometimes do overstep into the realm of law-making, but in the three states where same-sex marriage was required by judicial mandate, that was simply not what happened.

Third, it is not at all clear to me what "protections for religious groups" are needed, beyond the already extant legal, constitutional, and judicial protections of religion and speech with regards to civil marriage equality (and I deliberately use this descriptor because it accurately reflects what is at stake: equality, a fundamental American, democratic value). Each of the rulings in question held that the state had taken action it was constitutionally barred from taking and therefore bound the state to recognize civil marriage equality. If religious opponents of marriage equality believe that they have interests in the way the state treats its citizens that ought to outweigh constitutional prohibitions against discrimination, they are free to argue for those interests, but I find it difficult to imagine what those interests would be or what a sufficiently compelling argument for them would be.

This blog and its author, of whom I am terribly fond, both spend a great deal of time on the benefits of marriage as a powerful, valuable, and singular institution. Advocates of marriage equality, myself among them, believe that American citizens have a right to the the unique, transformative benefits of that institution, regardless of sexual orientation.

Gruntled said...

I appreciate your thoughtful and fact-filled response. I am not arguing against same-sex unions - see my detailed posts from the first two weeks of 2007. Rather, I am arguing against judicial end-runs around political questions. I think it creates more problems than it solves and is only to be used in the most dire circumstances.

The Massachusetts case is not one of the state court invalidating a discriminatory law. Instead, they re-interpreted the long-standing, normal marriage law of the state using new rules and definitions that it made up.

The Catholic family services agency in Massachusetts gave up placing any children for adoption because it feared that the result of the state supreme court ruling, or a similar one that might be expected to follow, would force the church to place children with same-sex couples against church doctrine. Perhaps they were being paranoid, but it seems to me very likely that some plaintiff would have brought a discrimination suit against the church agency.

Molly said...

"We have recognized the long-standing statutory understanding, derived from the common law, that "marriage" means the lawful union of a woman and a man. But that history cannot and does not foreclose the constitutional question... the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459, 460-466 (1879)... No religious ceremony has ever been required to validate a Massachusetts marriage...Civil marriage is created and regulated through exercise of the police power. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983)(regulation of marriage is properly within the scope
of the police power)...Without question, civil marriage enhances the "welfare of the community." It is a "social institution of the highest importance." French v. McAnarney, supra. Civil marriage anchors an ordered society by encouraging stable relationships over transient ones...civil marriage has long been termed a "civil right." See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) ("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival"), quoting Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Milford v. Worcester, 7 Mass. 48, 56 (1810) (referring to "civil rights incident to marriages"). See also Baehr v. Lewin, 74 Haw. 530, 561 (1993) (identifying marriage as a "civil right[ ]"); Baker v. State, 170 Vt. 194, 242 (1999) (Johnson, J., concurring in part and dissenting in part) (same)....Without the right to marry -- or more properly, the right to choose to marry -- one is excluded from the full range of human experience and denied full protection of the laws for one's "avowed commitment to an intimate and lasting human relationship." Baker v. State, supra at 229. Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual's right to marry against undue government incursion. Laws may not "interfere directly and substantially with the right to marry." Zablocki v. Redhail, supra at 387. See Perez v. Sharp, 32 Cal. 2d 711, 714 (1948) ("There can be no prohibition of marriage except for an important social objective and reasonable means")...We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs' constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature's broad discretion to regulate marriage. See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983)."--Goodridge v. Department of Public Health

Molly said...

More broadly, the holding in Goodridge specifically related to the actions of a state agency (the Department of Public Health, in its role granting marriage licenses), not a private body like the Catholic Family Service Agency. The case hinged on whether the Department, as an extension of the state's police power, violated the plaintiffs' rights to equal protection under the law, as safeguarded by Articles 1 and 10 of the Massachusetts Constitution. Yes, it is possible that a discrimination suit might have been brought, but there is no reason to believe that, under the Goodright analysis, the agency would have lost. Moreover, choosing not to engage in an action on the grounds that it might theoretically lead to you being sued is very different from being prohibited from that action.

Gruntled said...

"It leaves intact the Legislature's broad discretion to regulate marriage."
Nope, I don't buy it. The court made a huge change, and knew it. They could have ruled narrowly that conditions had changed such that the legislature should revisit the statute. But the legislature is the competent authority. And they could have discovered, in the process of debate, the various concerns that the court did not consider.

Anonymous said...

Molly's argument is a good example of how progessives use the courts to make policy. A prime example is Judge Sotomayor's taped statements. Expect a backlash.

paul said...

Disagreements between Westons are really, really scary.

I'm reverting to a duck and cover stance on this one.