Faith, Reason, and Prop. 8 at the U.S. Supreme Court
California Lawyer

Faith, Reason, and Prop. 8 at the U.S. Supreme Court

by Douglas W. Kmiec

March 2013

The Defense of Marriage Act (DOMA) would have been more forthrightly styled DODO or the Defense of Discrimination Ordinance; so too, as these few words will attempt to explain, neither Proposition 8 nor its opposition deserves the patronage of the Supreme Court. Amicus briefs are occasionally filed in support of neither party; here is why both sides are undeserving of complete support.

Faith and reason (fides et ratioequality and religious freedom.) are said to walk amicably side by side - often reinforcing if not holding one another up. The matter of same-sex marriage surely tests that axiom. Legal nuances aside, that which is perceived to be hurtful and demeaning sits uneasily with the prescription to "love our neighbor as ourselves." Because I find this topic impossible to fully address without cross-referencing faith, I will be making note of the Catholic faith of which I am a believer (full disclosure: as a Reaganite-supporter of President Obama some of conservative Catholics have me on their "suspect" list; they're mistaken, but that's a different column).

All religions, Catholicism included, seek to reveal men and women to themselves; to be, in short, instructive of the truth of human nature. A constitution described by James Madison as the most sublime reflection of human nature should not conflict. How then is it possible to single out for legal and cultural scorn, people living out what faith and scientists concede is biologically determined? Reason would put faith in the dock for distorting human nature; faith accuses reason of contorting the meaning of equal protection.

Faith can be quite counter-cultural, as the command to love one's enemies and to give preference to the poor testifies; so too, marriage in a divorcing culture. Is it noble or diabolical to wish all regardless of sexual orientation to know the beauty of a marriage hinged on a solemn promise of fidelity and mutual support?

Opponents of same-sex marriage claim procreation as justification. Gay and lesbian couples can and do adopt children who would otherwise have been abandoned or aborted. Many gay couples endure enormous expense and physical intrusion to secure the blessing of children.

Demographic studies do show Western populations to be declining. There are insufficient soldiers to fight our battles and inadequate laborers to sustain the safety net. Yet, does denying marital status remedy these shortages? And why exactly should a same-sex couple not have the same ability as traditional marriage partners to pass their hard-earned resources to a survivor without steep estate taxes?

True, government has an interest in a legal definition of marriage that formally ties a sexually active, heterosexual male to the care of offspring. Yet, why again should same-sex couples endure disadvantage because some over-testosteroned men in heterosexual unions need to be leashed by a marriage certification to be fully accountable to what the culture and every father of the bride fully expects?

The highly detailed, domestic partnership law democratically proclaims in California that as far as the needs of this state go, drawing distinction on the basis of sexual orientation is arbitrary or worse. Hoosiers or Show-Me Missourians or others with whistling teakettles might disagree, but that's America.

And these differences of view go far deeper than some ho-hum policy dispute running us off the next fiscal cliff, since faith traditions matter greatly and they do differ, and if the Court is to not color outside the lines of religious freedom that fact is pivotal to recall. In my church, marriage is said to be inseparable from procreative possibility. Here, the church finds qualitative difference anchored in scripture and Magisterium as the Sacrament of Matrimony effaces husband and wife in favor of the newly created union, which, in theory at least, is indissoluble, and then a secure foundation for the first civilization of the family. Other religions raise less objection to divorce, but it's not for the government to say who is right.

Which, by the way, is why DOMA is so wrong and likely headed for the dustbin; Congress had no constitutional warrant to prefer my orthodoxy and as much as I find real value in the Sacrament of Matrimony, unless I awake in the morning and discover the entire world to have been convinced of the fullness of Catholicism or similar belief (and hey, we've got a Jesuit coming to the mound in relief - as in "the sermon on the" - so anything can happen now. Nevertheless, the civil discussion of what counts as the rational extension of God's creative plan should properly go for a good long while yet in church, synagogue, and mosque before it presumes a return outing in the public square.

It was more anxiety over our collective inability to simultaneously articulate the freedom of religion without seeming to heap insult on our gay and lesbian citizens that drove the passage of both the federal and state laws. Yet, no religion has need or entitlement to DOMA's facial discriminations. .

Those loud misleading voices that deployed faith to provoke anger or hate stooped to the same "below the belt" tactics (there I go again) as those same-sex advocates who unmindfully and unnecessarily mocked religious belief, or ignored its sweeping diversity. These nettlesome cultural warriors deserve nothing more from the justices than a good faith (pun yet again intended) effort to clean up their respective messes. After that, let the people, not the Supreme Court, decide how best to live (gee, even "to pursue happiness") as a matter of religious freedom.

Bottom line: DOMA is a goner and the president could reasonably see his duty as not including its defense. The usual 5-4 handicapping of the Court makes Prop. 8 too close to call, but if upheld, the Court should write narrowly - not just because it would be deferring to direct democracy, but because in this instance its task is to preserve both equality and religious freedom.

Douglas W. Kmiec, former U.S. Ambassador to Malta, is the Caruso Family Chair in Constitutional Law and Human Rights at Pepperdine law school.

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