For those who have any doubts about the tactics that the Church is engaged in for anyone who speaks out in favor of gay rights, take a look at Father Geoff Farrow’s blog – as the pastor of the Neuman Center, Father Farrow received a directive from his Bishop to urge parishioners to vote in favor of Proposition 8 to deny marriage rights to same-sex couples. He refused and explained his reasons in his homily to his parishioners and he was removed as pastor and suspended as a priest. He is now speaking out on behalf of gay rights.
Follow his blog by clicking HERE.
As the trial in the federal court challenge, Perry v. Schwarzenegger, is set to begin, many activists are already predicting – or hoping – that the case will be a landmark federal case for gay rights – our version of Brown v. Board of Education – with profound impact as legal precedent in our favor. But the same logic should also be sending fear through the gay community – a loss could have exactly the opposite effect, especially if the case is appealed to our Supreme Court, now under the control of six Catholic justices, five of whom have equivocal to horrific records on gay rights, including the hoped-for swing vote in the case, Justice Anthony Kennedy.
Is this fear a lot of gloom and doom? Read on.
The Stakes. Three decades ago, gay rights attorneys for the ACLU brought a challenge to Georgia’s sodomy law, which the Attorney General admitted at oral argument that Georgia only intended to enforce against gay people. Arguing for a right of privacy, rather than equal protection, the ACLU lost that challenge. The Supreme Court’s 5-4 decision in that case, Bowers v. Hardwick, held that the U.S. Constitution did not bar the criminalization of “homosexual conduct.” As a result, court after court used the Bowers v. Hardwick decision as justification for dismissing gays and lesbians from the military, firing gay and lesbian federal emoloyees, denying gays and lesbians custody and adoption of children, and numerous other civil rights, including the right to marry. The logic of the courts was simple – if the Constitution did not prevent the criminalization of “homosexual conduct” – no matter how similar it was to heterosexual “conduct” – how could the Constitution not deem any other discrimination against gay people rational? Until the U.S. Supreme Court recognized in Romer v. Evans (1996) that some anti-gay discrimination could be unconstitutional, and in Lawrence v. Texas (2003) overruled Bowers v. Hardwick, civil rights for gay people were in constant jeopardy, and numerous gay rights challenges were effectively shut down.
Make no mistake: a Supreme Court decision in Perry could have disastrous consequences for gay rights cases. Even if the Supreme Court decides that the exclusion in Califoria is utterly irrational (e.g., because California already gives so many rights to gay couples, the State is making distinctions in name only to stimagize gay couples), attorneys Ted Olson and Clifford Boles have not limited their arguments to this point. Rather, they are arguing that the “fundamental right to marry” includes the right to marry someone of the same gender and that discrimination against gay people is suspect and should be scrutinized categorically as a matter of law. The U.S. Supreme Court has never ruled on these questions, and could use the case as an opportunity to declare that there is no fundamental right to marry for same-sex couples and that discrimination against gay people is not suspect, even if the Court narrowly concludes that California’s distinctions make no sense. Once the Court so rules, its decision would be federal precedent and would shut down all federal court claims on the right to marry nationwide, and could render massive discrimination against gay people constitutional, as I will explain below. In short, a slim victory for California could mean a huge loss for the nation.
At worst, the Court could hold that California has the right to exclude gay and lesbian couples from “marriage” for any number of reasons, including that discrimination against gay people is rational. If that becomes precedent, California’s loss may doom us all to decades of discrimination until the Court’s decision is overruled or the U.S. Constitution is amended.
If California loses this challenge and appeals the decision to the U.S. Supreme Court, enormous consequences are at stake for us all. Currently, the U.S. Supreme Court is sharply divided by the conservative and liberal voting bloc – four with a record of hostility to silence on gay rights, three with a relatively strong record of gay rights support, and two that are a question mark – Justice Kennedy who has been divided in his support for gay rights in key cases, and Justice Sotomayor, who is new to the Court.
The Court and Its Reliability on Gay Rights Issues. Gay rights supporters are pinning their hopes on two decisions, the aforementioned Romer v. Evans and Lawrence v. Texas – both written by Justice Kennedy – as a sign that Kennedy is a gay rights supporter. Under this theory, Kennedy, joining with the liberal bloc, can deliver a same-sex marriage victory. On closer examination, that calculation is wildly unsound.
The most frightening language comes from Lawrence itself, written by Justice Kennedy, who wrote about Texas’ sodomy law:
That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations– the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
The language is clear without implication or interpretation. Justice Kennedy is explicitly stating that he, at least in this case, sees a “legitimate state interest” in “preserving the traditional institution of marriage” and that the reasons for doing so are not “mere moral disapproval.” Justices Ginsberg, Breyer, and Stevens all joined this opinion, and we cannot say for certain whether or not they agree. Thus, even if Sotomayor disagrees with it, this could well be the opinion of the Court, joined by the other four justices – including Justice Scalia and Thomas – who have never voted in favor of any gay rights plaintiff at all. In fact, Justice Scalia and Thomas have voted in favor of an equal protection claim for only two types of plainitffs – George Bush, and white people challenging affirmative action. Scalia and Thomas have never found any gender or sex discrimination unconstitutional and have repeatedly voted to uphold it.
This is the Court on which the Perry plaintiffs and their attorneys and supporters are pinning all of our ultimate hopes and futures. Let’s reiterate – the assumption is that Justice Kennedy will be the swing vote with the liberal bloc to favor same-sex marriage. And yet, Justice Kennedy voted in favor of the Boy Scouts’ right to discriminate against gay scout leaders (the swing vote, no less); as a Court of Appeals judge, he not only voted to support the exclusion of all gays and lesbians in the military, he wrote the opinion, endorsing a policy more extreme than Don’t Ask, Don’t Tell; and he rejected the appeal of gay and lesbian plaintiffs whose protection from discrimination was removed by public referendum. And even if we assume Stevens, Ginsberg, Breyer, and Sotomayor will rule in favor of equality, who will the swing vote be if Kennedy cannot be relied upon? Roberts, the protege of Rehnquist? Alito, who may be our most conservative Supreme Court justice? Scalia? Thomas?
Remember – Justice Kennedy, the swing vote, is the author of the language above from Lawrence endorsing the rights of state to “preserve traditional marriage.” Unless one of the conservative justices surprises us, we seriously have to question what Ted Olson expects if he plans to reach the Supreme Court in this case.
The Arguments. Supporters of the litigation in Perry understandably feel that right and the emotions are on our side, and that the Supreme Court will “do the right thing” based on popular understanding of what the Constitution requires. But we need to educate ourselves about the Constitution before we conclude what the Court will do, and several of the arguments made by protesters in particular fall apart on the simplest of analysis.
- The “Reasons” for Denying Marriage to Same-Sex Couples Will Not Withstand Scrutiny. To understand how Constitutional litigation works, it is important to understand how the Supreme Court analyzes equal protection challenges. Ironically, it does not treat all equal protection claims equally. Rather, it treats certain classifications as inherently suspect because of the history of discrimination in the United States: Race-based classifications fall into this category, as do classifications based on national origin. Other classifications are considered “quasi-suspect”, on the theory that some distinctions are often valid for the government to make – for example, when it comes to government distinctions based on sex (excluding women from registration for the draft and combat remains one of the most controversial examples of such discrimination upheld, but there are others, including treating children of women different from children of men for nationalization purposes). Other classifications are given minimal scrutiny, and are presumed constitutional as long as the regulation falls within traditional state powers – what we call rational basis review. To date, sexual orientation discrimination falls into this category, because the Court has struck down regulation as being utterly irrational in the one and only equal protection case for gay rights, Romer v. Evans, and used similar rational basis review to strike down the criminalization of gay sex in Lawrence v. Texas. In other words, all of our Supreme Court gay rights precedent is based on the lowest level of scrutiny, and if the Court considers Prop 8 sexual orientation discrimination if and when it reviews Perry, the Court could hold that to date it has only used rational basis review for sexual orientation discrimination, has no reason to change it, and the law will not receive the highest scrutiny it deserves. (Note: The California Supreme Court struck down the marriage ban holding that sexual orientation discrimination was suspect but only under the California Constitution; federal courts are under no obligation to follow the California Supreme Court’s position under the federal Constitution).
- But Giving Benefits to Gay Couples as “Domestic Partnerships” not “Marriage” is “Separate But Equal” – And That’s Always Unconstitutional! No, sadly, “separate but equal” is not always unconstitutional, even under strict scrutiny. In fact, the U.S. Supreme Court has never held this to be so, contrary to myth. The misunderstanding comes from the fact that the Court, in Plessy v. Ferguson, once upheld “separate but equal” facilities in public accommodations as constitutional discrimination and then effectively overruled that decision in Brown v. Board of Education. To assume this means that “separate but equal” rules are always inherently unconstitutional is a vast oversimplification of what the Court actually held in Brown. The Court in Brown actually held that based on the scientific evidence in the case, the harm to “non-white” children from segregation, apart from other inequities, proved that the separate facilities were not in fact equal. It did not hold that “separate but equal” is always constitutional. In fact, in the case United States v. Virginia, the Court seemed to indicate that if Virginia provided separate but equal military schools for men and women, they could be constitutional, and to date, the Court is split on whether Plessy v. Ferguson has even been overruled as a matter of law. True, the Court once held that laws against interracial marriage were unconstitutional (in Pace v. Alabama) and overruled that decision in Loving v. Virginia, but it did so on the grounds that marriage (heterosexual) in that case was considered a fundamental right long before the Constitution, and Virginia’s rationale for criminalizing interracial marriage was White Supremacy. The Loving Court did not decide the case on “separate but equal” grounds.
- But Only Marriage Gives True Equality To Same-Sex Couples. Somewhere in the great public debate, the oversimplification of this argument had led to great confusion on this front, one that will not likely escape the Court. Consider this: in the five states that currently recognize same-sex “marriage”, same-sex couples are still treated differently under federal law, because federal law defines marriage as a union of “man and woman.” At the same time, in civil union states, same-sex couples who are civil union spouses have all the benefits of heterosexual couples and are treated exactly like same-sex “married” couples in Connecticut, Massachusetts and other states under federal law. Thus, as a matter of law, the “equality” at issue has to focus on whether we are talking about equality under state or federal law. State courts are split on this issue. The state supreme courts in New Jersey and Vermont concluded that separate schemes were in fact equal where all the spousal rights under state law were given to civil unions. The Connecticut Supreme Court, like the California Supreme Court, concluded that separate schemes stigmatized gay couples. And now the Perry plaintiffs are asking a federal court to take a fresh look at the Prop 8 as unequal under the federal constitution but only as to the difference in state law benefits. Because federal courts are not bound to follow state courts on federal constitutional questions, the court could, like the New Jersey and Vermont Supreme Courts, conclude that same-sex couples can receive all the substantive spousal benefits of state law without being called “married.” The question is an open one, at least as a matter of law.
- But Prop 8 is Irrational. Unfortunately, the word “rational” in rational basis review does not mean what it means in common parlance. As a matter of law, if the Supreme Court follows precedent and reviews Prop 8 under “rational basis review,” the burden will be on the plaintiffs to disprove every conceivable rationale that the government has for treating gay couples differently. Under this low level of scrutiny, the Supreme Court has repeatedly held that the government’s reason need not be logical, fair, based on facts or evidence, or even precisely equal – it must merely be a categorization that is within the government’s power, a “legitimate government interest.” When former Solicitor General Ted Olson signaled did not serve ““a single, compelling, or even legitimate state interest”, let’s be clear – he is signaling he may have to argue the case on rational basis review, with the buzzwords “legitimate state interest” being a warning sign. (And for those who trust Olson here, his concessions could cost us our rights). To understand the significance of how weak this level of scrutiny is, consider what happened in Equality Foundation of Cincinatti, the first major case to follow Romer v. Evans, when Cincinnati voters decided to repeal gay rights protections. The government defended the decision on the grounds that the city wanted to save money by not giving gay couples benefits – an argument the Sixth Circuit upheld as a “legitimate government reason” (the budget) and the Supreme Court, including Justice Kennedy, declined to even review it. The rationale was clearly absurd. If gay couples married heterosexually, the city would have to give out those same benefits, but to save money it could simply choose to withdraw benefits from people who were gay? Apparently, this is “rational” when the reasoning is not heavily scrutinized. To be sure, when California gives virtually all the rights to same-sex couples under its law that heterosexual couples receive under marriage, it’s hard to determine what reason exists for the distinction (As the Connecticut Supreme Court failed to find one when it required the state to forego civil unions for marriage). But if this all depends on what the U.S. Supreme Court considers rational, remember what Justice Kennedy wrote about marriage – an opinion with which that Ginsberg, Breyer, Souter, and Stevens all concurred – that preserving the traditional institution of marriage is a legitimate state interest …. [and] other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
A Final Thought: Is There Any (Catholic) Hope? While the focus of this blog entry on the six Cathlolic Justices may seem sweeping and prejudicial, I offer this point. Justice William Brennan, who was a lifelong devout Catholic, was the first Supreme Court Justice to argue that sexual orientation discrimination should be inherently suspect (Justice Marshall concurred in that opinion). And I reiterate: Justice Kennedy, a Catholic, is the author of the two leading gay rights cases from the U.S. Supreme Court. But I also reiterate, Justice Kennedy was also the swing vote against gay rights in other key cases, and is on record as defending “reasons” for “preserving the traditional institution of marriage.” If he sees that the primary desire to give benefits under a different name to gay couples has only one reason – the desire to treat a group differently because of dislike – he may yet be the swing vote in our favor. But the case is closer than many supporters of the Perry case want to admit. With the Catholic Church punishing priests who speak out on Proposition 8, encouraging voters to oppose same-sex marriage, and continuing to teach generally that homosexuality is sinful, do we really believe we can put our “faith” in the hands of six Justices who may be influenced by the Catholic Church?