At last! More than a decade after the Massachusetts high court made judicial history by invalidating a state prohibition on same-sex marriage, a court has finally acknowledged the legal significance of a virtually indisputable characteristic of such prohibitions: their deep-seated religious roots.
U.S. District Judge Bernard Friedman in DeBoer v. Snyder on March 21 struck down a Michigan same-sex marriage ban adopted by popular vote in 2004. According to Friedman, the many Michigan residents who voted for the ban failed to recognize the federal constitutional difference between living their lives according to their individual religious beliefs and imposing those beliefs by law on the lives of others.
Paraphrasing the First Amendment’s free exercise and establishment clauses, he reminded the Michigan electorate that the Constitution that “protects the free exercise of one’s faith” is “the same Constitution” that prevents them from “mandating adherence to an established religion.”
So, having gone further than any court had gone before — both in recognizing the religious underpinnings of laws against same-sex marriage and in pointing out the obvious tension between such laws and the Constitution’s establishment clause — did the judge in DeBoer boldly declare the Michigan ban in violation of that clause?
Unfortunately, he did not. Instead, without further discussion of establishment principles, he went off on a line of reasoning similar to the U.S. Supreme Court’s last June in United States v. Windsor when it voided the federal Defense of Marriage Act’s nonrecognition of state-approved same-sex marriages.
According to Friedman, the Michigan prohibition, like the DOMA provision the justices struck down in Windsor, treats same-sex couples differently from opposite-sex couples without “a rational basis” and, therefore, runs afoul of the constitutional guarantee of equal protection.
But why “unfortunately” not? For two reasons: the unpersuasiveness of the path taken and the unrealized potential of the path not pursued.
As far as the path taken, Friedman’s stated ground for the decision in DeBoer is simply not convincing. The justifications typically offered for banning same-sex marriage seem to me terribly flimsy, but they are not so utterly devoid of logic as to fail to satisfy the rational-basis requirement as that requirement has been applied by the Supreme Court and other courts over the years.
To his credit, Friedman, unlike the Supreme Court majority in Windsor, does not try to make a conclusion of no rational basis more plausible by finding that the lawmaker — in this instance, the Michigan electorate — acted primarily out of animus toward gays and lesbians. He expressly disclaims any such finding.
The majority’s finding in Windsor — that the U.S. Congress that passed DOMA and the U.S. president (Bill Clinton) who signed it into law were acting largely out of such invidious and hateful motives — does a disservice not only to that Congress and president but also to the result that the court reached.
As far as the path not pursued, the outcome in DeBoer, like the outcome in Windsor, is far more defensible under a religion-based line of reasoning than under the one ultimately taken. Neither the voter-adopted ban in DeBoer nor the federal legislation in Windsor is fairly understood as failing a rational-basis test that historically demands merely the thinnest sliver of rational explanation for a law to survive.
Both laws, however, are readily understood as examples of lawmakers (the Michigan voters in one instance, and Congress and the president in the other), consciously or unconsciously, incorporating into law their religious beliefs or (in the case of Congress and the president) the religious beliefs of many of their constituents. So understood, such laws send a message of government endorsement of religion that calls for their invalidation under the establishment clause.
To charge lawmakers with giving undue weight to religion is worlds apart from charging them with acting out of a desire to demean and victimize gays and lesbians. The latter charge is tantamount to a statement that the lawmakers are lawless individuals and fundamentally bad people. The former charge is hardly a compliment; it certainly implies that the lawmakers have an imperfect understanding of constitutional bounds. Nonetheless, it does not come close to suggesting that they are despicable persons, unworthy of holding office or casting a vote.
The establishment clause treats government endorsement of religion as a bad thing. It does not suggest, however, that religion itself is bad or that a lawmaker who oversteps the line between permissible and impermissible government accommodation of religion must be a bad person.
Similar to the free exercise clause — its companion clause in the First Amendment — it assigns great value to, and seeks to safeguard, individual religious liberty.
Prohibitions on same-sex marriage deserve the same fate as the DOMA provision struck down in Windsor. However, rather than rely on the Supreme Court’s dubious inference in Windsor that laws treating same-sex couples unequally are best understood as mean-spirited acts of legislative animus, courts should take to heart Friedman’s insightful comments in DeBoer about the religious roots of such laws and strike them down under the establishment clause.
Gary J. Simson holds the Macon Chair in Law at Mercer University Walter F. George School of Law and is professor emeritus at Cornell Law School.