Wherein I agree with the Catholics, Southern Baptists, Mormons, and Missouri Synod Lutherans

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Utah State Flag

Utah State Flag

Utah State Flag

Those religious folks, or at least their organizational hierarchies, want the U.S. Supreme Court to decide whether it is constitutionally forbidden for states to ban same-sex marriage. So do I.

You’ll recall that the court ducked the issue last year, tossing out the federal Defense of Marriage Act but punting on the question of whether state bans violate the equal protection and/or due process clauses of the Fourteenth Amendment. Since then, a bunch of federal district and appeals courts have all (with the exception of one district court in Louisiana) decided that such bans do indeed violate one or both of those clauses. On so weighty an issue, now being litigated wherever SSM is not allowed, the justices need to man up and render judgment.

The Catholics, Southern Baptists, etc. think that the case the court should take is Utah’s, and I do too. Why Utah?

Not, as Mark Wilson asserts over at FindLaw, because Utah is one of those states where the voters rather than the legislature approved the ban, thereby creating the clearest contrast between democratic and judicial decision-making on a fraught political issue. (It was on a preference for the former that the outlying Louisiana judge hung his hat.)

Rather, the religious organizations make clear in their amicus brief that, besides addressing all relevant Fourteenth Amendment issues, the Utah case uniquely addresses the burden placed on religious liberty by SSM. Quoting from a 2012 letter from a coalition of anti-SSM religious leaders, they write:

Judicially redefining marriage powerfully conflicts with religious liberty because, among other reasons, such a dramatic change in the law inevitably will lead to “forcing or pressuring both individuals and religious organizations – throughout their operations, well beyond religious ceremonies – to treat same-sex sexual conduct as the moral equivalent of marital sexual conduct.”…

Utah’s petition provides an opportunity to address whether avoiding religious conflicts and church-state entanglements is a sufficiently weighty reason, alone or combined with other interests, to warrant allowing States to retain the age-old definition of marriage.

If the court did find such avoidance sufficiently weighty, I’ve no doubt that the next legal step would be to ask that all states be forbidden to permit SSM on religious liberty grounds. But the real significance of the brief, it seems to me, is that it represents an acknowledgment that SSM is becoming the law of the land, and that the battle has now moved to the securing of legal exemptions for religious objectors.

Under the circumstances, the Catholics, Southern Baptists, Missouri Synod Lutherans, and especially the Mormons should be aware that the Fourteenth Amendment cuts both ways when it comes to religious liberty. Just this past year, U.S. District Judge Clark Waddoups declared Utah’s anti-polygamy statute to be in violation of the due process and equal protection clauses. By taking the Utah case, the Supreme Court will invite amicus briefs from fundamentalist Mormons who, with good reason, will see a decision declaring state anti-SSM laws unconstitutional as enhancing their freedom to practice their polygamous faith.

In other words, be careful what you wish for.

  • samuel Johnston

    Talk about being careful what you wish for. We are rapidly heading for a Unitary central government. Taking the power to define marriage and domestic arrangements away from the States is a huge change of jurisdiction, that many will rue in the end. Obviously few, if any, who penned the Constitution, would have contemplated or favored such a development. The post Civil War Amendments are not designed to apply to sexual distinctions; had they, the right of women to vote would have been automatic. So this is likely to be another Roe v Wade- highly divisive and immediate, rather than evolutionary through the electoral mechanism. Happy culture wars to all, as the tail wags the dog.

  • Larry

    ” The post Civil War Amendments are not designed to apply to sexual distinctions”

    They weren’t designed to apply to a lot of distinctions but we have about 60 some odd years of use as a general go-to point for civil liberties questions.

    The states lost the ultimate power to define marriage in 1960 when the Supreme Court made its findings in Loving V. Virginia and Griswold v. Connecticut. In both cases some aspect of marriage unique to the state laws was struck down as being violations of equal protection under the law.

    You can go as far back as the 19th Century when Reynolds v. US stated that polygamy bans were justifiable on reasons besides the state’s power.

    This is going to be like Brown v. Board of Ed. necessary but hugely unpopular. Many states will drag their heels in implementing it. (There is little to no chance Kennedy is going to rule against himself/prior decisions on this subject, the SSM opponents have nothing substantial in their quiver to argue).

  • Samuel Johnston

    I do not argue as to the likelihood of a S.C. ruling as you outline, only its wisdom.
    No matter what happens legally, most of the society will remain heterosexual, and further, they will not define themselves as principally sexual beings or permanently attached to defending sexual minorities. What they will do, is follow their genetic programing.
    I contend that tolerance in such matters is being spurned by the cause thumpers because it implies (correctly) less than enthusiastic support. The time may come again when this permanent minority will need the tolerant to befriend them, because the fashionable have moved on. The electoral mechanism may be slower than the judicial, but it will provide a more secure basis for social consensus, and therefore a more permanent result.

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  • Larry

    Tolerance comes more easily when social sanction for intolerance becomes more difficult. Nobody ever advanced civil liberties by trying to reach out to people who wanted to discriminate. No compromise or bridge building ended slavery or segregation. Civil liberties are far too personal to treat in a dispassionate fashion amenable to horsetrading.

    Usually what happens is that people find a new subject of their intolerance and make compromises they would not have done otherwise. The former marriage equality opponents will make alliances with gays when they find a group they both hate. For example, people did not stop discriminating openly against Irish, Italians and Poles because they suddenly felt a change of heart. They found someone new to hate together: Latinos, African-Americans and Asians.

    1-2 generations ago you would not see such diverse Christians sects even willing to be in the same room together let alone agree on a political issue. But united by fear, they put their animosities aside.

  • samuel Johnston

    I suppose Larry, we roughly represent the Progressive vs. the Libertarian viewpoints. To me, the dictatorship of the bureaucrat is a greater threat to my freedom than it is an efficient remedy for various social problems.
    You say” No compromise or bridge building ended slavery or segregation.” Yet somehow it ended in Great Britain without a Civil War. People are much more complex than causes or ideas. As I grow older, I value reliable and considerate people more than those who merely share my current opinions.

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