In Fall 2011, the Undergraduate Fellows enrolled in the Law, Religion, and Liberty of Conscience Seminar interviewed experts about the role of conscience in American life, law and politics. Below are some of their responses to the students' tenth question:
Many critics of legislation that defines marriage as exclusively between a male and female end up asserting that the underlying (and sometimes only) foundation of this position is animus, hostility, or moral opprobrium towards homosexuals and homosexual activity. Many proponents of such legislation assert that this is a fundamental misapprehension of their position and that the role and function of marriage has a deep-seated moral tradition that is natural and rational (and thus part of the state's legitimate interests). Whether in litigation or in public discourse, how might these arguments be sharpened?
Richard W. Garnett:
I'm not sure. I do not believe that opposition to the expansion of civil marriage, by courts or by legislatures, to include same-sex unions necessarily, or even usually, involves animus or hostility to gay people. But, that is how this opposition is perceived by many sincere people, and this makes dialogue and compromise difficult.
Ira “Chip” Lupu:
I really dislike the use of the word “natural” to describe social norms. Natural does not mean frequent or typical. Crime is as natural as loving behavior, but we have social norms that condemn the former and commend the latter. If natural is just a surrogate for “as God inspired or intended,” then it's a cheat word, being used to smuggle religious ideas into a debate about the secular good. Of course, not all opposition to homosexuality is prejudice or hostility. But all of it is irreducibly religion-based. I have yet to hear a plausible, fully secular moral argument against same-sex intimacy (as I suggest, arguments from what is "natural" are not honest secular arguments; they are religiously normative, but masquerading as something else.)
Steven D. Smith:
There are reasons why a great deal of contemporary argumentation takes the form of accusing one's opponents of animus, hatred, or bigotry. The Supreme Court itself has powerfully contributed to, and in a sense even required, this sort of rhetoric of demonization. I think this is a highly unfortunate and destructive feature of contemporary discourse, but I don't expect it to go away any time soon because, once again, current conditions virtually demand such rhetoric. Nonetheless, it would be good if advocates would try to avoid it.
Douglas Laycock:
They could be sharpened most obviously by clearly distinguishing legal marriage from religious marriage. Legal marriage is about a set of legal rights: about mutual duties of support, social insurance, inheritance, joint tax returns, joint bankruptcy filings, evidentiary privileges, employee fringe benefits, suits for wrongful death and personal injury. These legal rights are tied to a human relationship that involves a long-term mutual commitment, but they are not tied to any religious understanding of marriage. And whether or not the religious understanding is fairly characterized as simple bigotry, a religious understanding is not a compelling governmental interest; it is not a basis for overriding constitutional rights.
Mark R. Wicclair:
The claim that a prohibition of same sex marriage is based on “a deep-seated moral tradition that is natural and rational (and thus part of the state's legitimate interests)” simply begs the question. One might have advanced the same claim, not too long ago, to defend prohibitions of interracial marriage, not to mention integrated schools and public accommodations.
Caroline Mala Corbin:
The only basis for opposition to same-sex marriage is religious. For the state to deny some people fundamental rights in order to codify other people’s religious views violates both the Equal Protection Clause and the Establishment Clause.
Alan Brownstein:
I think the non-religious secular arguments for limiting marriage to a man and a woman are extremely weak and unpersuasive. In my judgment, the primary arguments for denying same-sex couples the right to marry are religious in nature. This raises a practical conundrum. Opponents of same-sex marriage feel compelled to offer secular arguments in litigation, but these arguments often seem like makeweight substitutes for the real basis for their position—which is grounded on religious beliefs.
I think we confront a related problem in evaluating the argument that opposition to same-sex marriage is based on animus or hostility toward homosexuals or homosexual activity. How do we tell whether religious opposition to an activity or a class should be characterized as bigotry? If a person sincerely believes according to his interpretation of scripture that G-d intended the races to live separately, is that person a bigot? Are sincere, theologically-based negative attitudes toward Jews, Catholics, or Muslims a form of bigotry? The same question can be asked with regard to religiously based opposition to same-sex marriage.
Nelson Tebbe:
… I think this is a question of contested social meaning. I don't think there's any question that Prop. 8 devalues same-sex marriage, but it may do so only incidentally, as a side effect of "preserving" different-sex civil marriage. Courts determine social meaning all the time, particularly in the context of religious endorsements and in the context of equal protection. To my mind, the social meaning of same-sex marriage exclusions clearly does denigrate same-sex marriage (and maybe those who participate in it) but this is contested, as the question notes.
Richard W. Garnett:
I'm not sure. I do not believe that opposition to the expansion of civil marriage, by courts or by legislatures, to include same-sex unions necessarily, or even usually, involves animus or hostility to gay people. But, that is how this opposition is perceived by many sincere people, and this makes dialogue and compromise difficult.
Ira “Chip” Lupu:
I really dislike the use of the word “natural” to describe social norms. Natural does not mean frequent or typical. Crime is as natural as loving behavior, but we have social norms that condemn the former and commend the latter. If natural is just a surrogate for “as God inspired or intended,” then it's a cheat word, being used to smuggle religious ideas into a debate about the secular good. Of course, not all opposition to homosexuality is prejudice or hostility. But all of it is irreducibly religion-based. I have yet to hear a plausible, fully secular moral argument against same-sex intimacy (as I suggest, arguments from what is "natural" are not honest secular arguments; they are religiously normative, but masquerading as something else.)
Steven D. Smith:
There are reasons why a great deal of contemporary argumentation takes the form of accusing one's opponents of animus, hatred, or bigotry. The Supreme Court itself has powerfully contributed to, and in a sense even required, this sort of rhetoric of demonization. I think this is a highly unfortunate and destructive feature of contemporary discourse, but I don't expect it to go away any time soon because, once again, current conditions virtually demand such rhetoric. Nonetheless, it would be good if advocates would try to avoid it.
Douglas Laycock:
They could be sharpened most obviously by clearly distinguishing legal marriage from religious marriage. Legal marriage is about a set of legal rights: about mutual duties of support, social insurance, inheritance, joint tax returns, joint bankruptcy filings, evidentiary privileges, employee fringe benefits, suits for wrongful death and personal injury. These legal rights are tied to a human relationship that involves a long-term mutual commitment, but they are not tied to any religious understanding of marriage. And whether or not the religious understanding is fairly characterized as simple bigotry, a religious understanding is not a compelling governmental interest; it is not a basis for overriding constitutional rights.
Mark R. Wicclair:
The claim that a prohibition of same sex marriage is based on “a deep-seated moral tradition that is natural and rational (and thus part of the state's legitimate interests)” simply begs the question. One might have advanced the same claim, not too long ago, to defend prohibitions of interracial marriage, not to mention integrated schools and public accommodations.
Caroline Mala Corbin:
The only basis for opposition to same-sex marriage is religious. For the state to deny some people fundamental rights in order to codify other people’s religious views violates both the Equal Protection Clause and the Establishment Clause.
Alan Brownstein:
I think the non-religious secular arguments for limiting marriage to a man and a woman are extremely weak and unpersuasive. In my judgment, the primary arguments for denying same-sex couples the right to marry are religious in nature. This raises a practical conundrum. Opponents of same-sex marriage feel compelled to offer secular arguments in litigation, but these arguments often seem like makeweight substitutes for the real basis for their position—which is grounded on religious beliefs.
I think we confront a related problem in evaluating the argument that opposition to same-sex marriage is based on animus or hostility toward homosexuals or homosexual activity. How do we tell whether religious opposition to an activity or a class should be characterized as bigotry? If a person sincerely believes according to his interpretation of scripture that G-d intended the races to live separately, is that person a bigot? Are sincere, theologically-based negative attitudes toward Jews, Catholics, or Muslims a form of bigotry? The same question can be asked with regard to religiously based opposition to same-sex marriage.
Nelson Tebbe:
… I think this is a question of contested social meaning. I don't think there's any question that Prop. 8 devalues same-sex marriage, but it may do so only incidentally, as a side effect of "preserving" different-sex civil marriage. Courts determine social meaning all the time, particularly in the context of religious endorsements and in the context of equal protection. To my mind, the social meaning of same-sex marriage exclusions clearly does denigrate same-sex marriage (and maybe those who participate in it) but this is contested, as the question notes.
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