Religion by any other name? Prohibitions on same-sex marriage and the limits of the establishment clause.

• Author: Simson, Gary J.
• Position: Introduction through IV. An Assessment of Reasons Offered for Prohibiting Same-Sex Marriage F. Guarding Against the Erosion of Other Societal Prohibitions, p. 132-165

Even the most casual observer of the debate in the United States whether to legalize same-sex marriage would be hard-pressed to ignore the significance of religion to that debate. Most obviously, a number of religious groups officially oppose or support same-sex marriage. (1) The Catholic Church, American Baptist Churches, Southern Baptist Convention, Islam, Orthodox Judaism, Mormon Church, and National Association of Evangelicals are among the groups expressly in opposition, while the United Church of Christ, Reform Judaism, and Unitarian Universalist Association of Congregations are among those expressly in support. (2) Moreover, the various groups on record in opposition or support generally have not been bashful about injecting themselves into the political fray and lobbying forcefully for the outcome that they see as right. (3)

According to a May 2011 Gallup Poll, a recent surge in public support for same-sex marriage has lifted the proportion of adults in support to slightly more than half. (4) However, if the adult population is divided into subgroups according to the importance of religion in one's life, some of those subgroups are far from evenly split between supporters and opponents of same-sex marriage. Of those surveyed in 2010 who said that religion is very important to them, only 27% favored legalizing same-sex marriage, and 70% opposed legalization. Conversely, of those surveyed who said that religion is not important to them, 71% favored legalization, and merely 27% were opposed. (5)

Many opponents of legalizing same-sex marriage have made no secret of the fact that their opposition is rooted in religion. In some instances, their emphasis is the sanctity of the favored male-female bond. For example, according to one source, the Bible "maintained that in order to become fully human, male and female must join.... The union of male and female is not merely some lovely ideal; it is the essence of the Jewish and Christian outlooks on the human experience." (6) In other instances, the argument focuses on the disfavored same-sex relationship. As one staunch critic of same-sex marriage explained, "I believe Christians must submit to the Bible's teachings, and I believe the Bible is unequivocal in its teaching that homosexual behavior is sinful. That being the case, it is impossible for me to accept same-sex marriage, which legitimizes a sinful behavior." (7)

Often, though by no means always, legislators have been more reticent about citing religion to justify their opposition to same-sex marriage. (8) Some legislators whose opposition to same-sex marriage is rooted strongly in religion may be unwilling to admit it publicly out of a political calculation that citing religion would be apt to be unpopular and cost them votes. Particularly, however, in legislative districts heavily populated by adherents to one or more of the religions on record as opposed to same-sex marriage, political calculation seems an unlikely explanation for legislators' reluctance to cite religion as central to their opposition. A more plausible explanation appears to be constitutional concerns--specifically, concerns about running afoul of the First Amendment's ban on laws "respecting an establishment of religion." (9)

In this Article, I maintain that, regardless of what lawmakers opposed to same-sex marriage may be willing to state publicly as their reasons for voting against same-sex marriage, courts should find that laws prohibiting same-sex marriage violate the Establishment Clause and uniformly should be struck down. (10) By way of general background, I begin in Part I by explaining the nonendorsement principle that the Supreme Court has recognized as central to the clause. I turn in Part II to the case law and commentary--or, more precisely, the general scarcity thereof--on the implications of the Establishment Clause for same-sex marriage prohibitions.

After explaining in Part III the basic framework for the Establishment Clause analysis that follows, I examine in Part IV the various reasons that opponents of same-sex marriage have articulated with any frequency in support of a ban. I maintain that those reasons provide strikingly little justification for laws banning same-sex marriage. After discussing in Part V three substantial reasons for allowing same-sex couples to wed, I consider in Part VI the difficulty of making sense of a legislative decision to prohibit same-sex marriage--a decision that, in effect, gives priority to the flimsy reasons for prohibition over the weighty reasons for legalization. A covert purpose to endorse religion is not the only possible explanation for the legislature's decision. I suggest, however, that it is the most plausible one largely because, perhaps paradoxically, it is the one most in keeping with the deference that lawmakers are generally owed.

In Part VII, I examine three possible objections to a conclusion that prohibitions on same-sex marriage violate the Establishment Clause. The first two objections that I address relate to ambiguities in the endorsement test. The third objection arises out of the possibility that, in the near future, the Supreme Court may replace the endorsement test with a less demanding test predicated on coercion. I consider both the likelihood of such a change in the applicable test and whether prohibitions on same-sex marriage are more apt to survive a coercion test than an endorsement test. Lastly, in Part VIII, I briefly examine the federal government's contribution to the same-sex marriage debate: the Defense of Marriage Act of 1996 (DOMA). (11) As I explain, despite some obvious differences, DOMA is very much akin to state laws prohibiting same-sex marriage. For much the same reasons that those laws are vulnerable to Establishment Clause challenge, DOMA is as well.

1. The Nonendorsement Principle

   For lawmakers to invoke religion as the basis for adopting or retaining prohibitions on same-sex marriage treads on constitutionally perilous ground--at least as that terrain has been described by the Supreme Court over the past several decades. If, as Supreme Court precedent holds, the Establishment Clause prohibits government endorsement of one or another religion or religious belief, (12) lawmakers risk judicial invalidation by articulating their opposition to same-sex marriage in religious terms.

   Under the Supreme Court's longstanding "endorsement test," a law may be struck down on the basis of either a purpose or effect of endorsing religion. (13) The likelihood of judicial invalidation based on a purpose of endorsing religion is low because the Supreme Court has limited invalidation on that basis to instances in which the challenger can prove that a purpose of endorsement was the lawmakers' exclusive, or nearly exclusive, purpose in enacting the law. (14) Given the difficulties inherent in trying to prove that lawmakers acted for purposes other than those that they are willing to admit, the task of proving that they were motivated entirely or almost entirely by an impermissible purpose--in this instance, one of endorsing religion--is almost always extremely difficult, even when there is very good reason to suspect that impermissible purpose played a crucial part. (15)

   The likelihood of judicial invalidation based on an effect of endorsing religion is considerably less remote. Under this aspect of the endorsement test, the challenger must persuade the court that a reasonable observer is likely to perceive the law in question as sending a message of government endorsement of religion. (16) The test does not require for invalidation that the impermissible effect of endorsement be exclusive or even nearly so. Instead, it is met by a showing that the impermissible effect is substantial. (17) Though not entirely clear, the requirement of a "substantial" effect of endorsing religion is probably best understood as focusing attention on whether a reasonable observer is apt to perceive a law as communicating a substantial preference on the part of the state that people adhere to some religion (rather than none at all), a particular religion, or a particular religious belief. (18)

   A reasonable observer's perception of the message communicated by government action only sensibly would turn largely on his or her perception of the purposes underlying the action. (19) If a reasonable observer were persuaded that the state acted without any purpose of endorsing religion, he or she would not be apt to perceive the action as communicating a substantial pro-religion preference on the part of the state. Conversely, if a reasonable observer were persuaded that the state's exclusive purpose in acting was to endorse religion, he or she would readily perceive the action as communicating a substantial preference of this sort. A court's task in ascertaining a reasonable observer's likely perception when a law appears to be based on a variety of purposes, some religious and some not, is obviously more complex and requires a close assessment of the apparent purposes and the part that each appeared to play in the state's decision to act as it did.

   Because proof of a purpose of endorsing religion may be instrumental in proving an impermissible effect even if that purpose is not exclusive or nearly exclusive, lawmakers need to be considerably more secretive about their religious purposes than they would need to be if the only relevant inquiry under the endorsement test were the one into purpose. As I seek to demonstrate in this Article, however, secretiveness is no guarantee of success.

2. The (Very Limited) Judicial and Scholarly Backdrop

   In light of the prominent role that religion has played in the public debate on same-sex marriage, one might expect that there would be a fair amount of case law and scholarly commentary addressing the implications of the Establishment Clause for same-sex marriage prohibitions. In fact, however, the case law is almost silent on those...