|
Article Excerpt
"People place their hand on the Bible and swear to uphold the Constitution. They don't put their hand on the Constitution and swear to uphold the Bible."
--Jamin Raskin, Professor of Law, American University, in testimony before the Maryland Senate Judicial Proceedings Committed (1)
INTRODUCTION I. DEFINING "MARRIAGE". A. A Brief History and Overview B. The Establishment Clause and Our Religious Heritage II. A PRIMER ON THE FEDERAL MARRIAGE AMENDMENT AND ITS KIN A. What Are Same-Sex Marriage Bans and What Do They Do? B. Who Supports the FMA? III. WHERE ARE WE GOING, AND WHY ARE WE IN THIS HANDBASKET?: A SHIFT IN FUNDAMENTAL(IST) RHETORIC A. The Theoretical Underpinnings of Preservationism B. Preservationism: An Application IV. MODERN ESTABLISHMENT CLAUSE JURISPRUDENCE: "HOPELESS DISARRAY". A. The Lemon-Endorsement Test: Context-Specificity and the Requirement of Government Neutrality Toward and Among Religions 1. The Lemon Test 2. The Endorsement Test B. The Historical-Acknowledgement Test: A Free Pass to Christian Majorities 1. "Unbroken History": Chief Justice Rehnquist's Test 2. The Framers and Original Meaning: Justice Scalia's Test V. DO SAME-SEX MARRIAGE BANS PASS MUSTER?: APPLYING THE LEMON-ENDORSEMENT TEST A. The Search for a Secular Purpose: Evaluating the Arguments Against Same-Sex Civil Marriage 1. The Federal Defense of Marriage Act (DOMA), Social Science, and a Bit of History 2. Why We Have Opposite-Sex Marriage: Circularity, Question-Begging, and a Pound of Logic 3. Of Slippery Slopes and Social Destruction: Consequentialism, Perversity, and Chicken Little 4. A New Slippery Slope: Religious Freedom and Sincerely-Held Beliefs 5. Warhorses: Public Health and Morals 6. Federalism, the Conflict of Laws, and Institutional Legitimacy B. Applying the Lemon-Endorsement Test 1. What Does the Reasonable Observer Know About the Context and History of Same-Sex Marriage Bans and the FMA? 2. Does the FMA Have the Purpose of Endorsing or Establishing Religion ? 3. Does the FMA Have the Effect of Endorsing or Establishing Religion? 4. Does the FMA Segment Society into Political Insiders and Outsiders Based Upon Their Religious Beliefs? VI. CONCLUSION: RESOLVING OUR DEFINITIONAL PROBLEM
INTRODUCTION
America is suffering from a definitional crisis regarding the term "marriage." This crisis has crystallized in the context of the debate over same-sex marriage. (2) Because Americans cannot agree on what marriage is or should be, we cannot agree on whether same-sex couples should be allowed to marry. Moreover, Americans have historically--and in recent years, sometimes deliberately--conflated notions of civil marriage and religious marriage. (3) This has resulted in the imposition of a religious definition of marriage on the larger society. As a consequence, the definitional crisis is not mere disagreement about the humanity of same-sex couples--rather, the crisis also carries constitutional implications because of the tangled histories of religious and civil marriage. Nevertheless, the status quo (opposite-sex marriage only) remains largely undisturbed: In all but one of the fifty states, (4) marriage is presently defined--either explicitly or implicitly--as the legal union of one man and one woman. (5)
Most of the present-day definitional tension arises because American governments have historically intertwined the civil and religious roots of marriage. According to the Pew Research Center, the two most common demographic indicators for opposition to same-sex civil marriage are age (6) and religiosity. (7) Indeed, young adults and "seculars" actually favor same-sex civil marriage by substantial margins. (8) The most commonly-cited reason for opposing same-sex civil marriage is that it goes against one's own religious beliefs. (9) These statistics are consistent with the Pew Research Center's conclusion that opposition to homosexuality and gay rights is derived primarily from religious beliefs. (10)
This is not to say that one could not both hold religious beliefs opposed to homosexuality and support same-sex marriage as a civil right. Indeed, the very fact that a small percentage of Evangelical Christians favor same-sex civil marriage shows this to be possible. (11) One likely reason for this welcome statistical variance is that many religious believers do not consider it appropriate for their beliefs to drive generally-applicable public policy--said differently, these believers prefer that spiritual and worldly authority remain separate. (12) It seems that, despite their philosophical differences, (13) religious believers and "Secularists" (atheists, humanists, etc. (14)) have nevertheless found common ground. (15)
These highly-textured statistics motivated me to investigate the extent to which religious beliefs are the driving force behind statutory and constitutional initiatives to prohibit judicial or legislative recognition of same-sex civil marriage. My findings were unsurprising: The overwhelming majority of support for bans on same-sex civil marriage has come from religious believers, and the so-called "secular justifications" for these bans are mere pretexts for religious beliefs that homosexuality, homosexuals, and same-sex couples are evil or sinful. Opponents of same-sex civil marriage derive their preferred definition of marriage almost entirely from the Christian precept that one-man, one-woman marriage was "ordained by God" (16) and is therefore inherently superior to same-sex unions. The ongoing effort of the radical Christian right to impose its religious beliefs on Americans of all faiths and traditions has begun in piecemeal fashion--at the state level through state statutes and constitutional amendments, and at the federal level through the federal Defense of Marriage Act (17) and the various proposed amendments to the U.S. Constitution. (18)
This Article discusses how, because of America's history of blending religious and civil marriage, as well as the preservationist's ongoing campaign to codify religious marriage in the law, our current definition of "civil" marriage is impermissibly derived from religious precepts, without a sufficient--or rational--secular justification. What is the remedy? Courts should take a hard look at the substantive justifications offered in support of same-sex marriage bans, bearing in mind that (1) these justifications are universally offered by religious believers but are infrequently offered by credentialed Secularists, and (2) they are the result of a studied use of pretextual, secular-sounding language to cloak a religiously-motivated bias against homosexuals and same-sex couples. In Part I, I describe the definitional problem, briefly explore the roots of civil and religious marriage in America, and survey the variety of religious and irreligious beliefs about the morality of homosexuality and same-sex unions. In Part II, I describe what same-sex marriage bans are, introduce the proposed Federal Marriage Amendment (FMA) as exemplary of all such bans, and determine that fundamentalist religious beliefs are the common trait held by the vast majority of witnesses who testified before Congress in favor of the FMA. In Part III, I introduce the concept of "preservationism"--a unifying theory to explain the invidious religious purpose underlying the "secular" justifications for same-sex civil marriage bans. In Part IV, I discern the background neutrality principles underlying modern-day Establishment Clause jurisprudence, briefly delineate the two primary interpretive methods that the Supreme Court currently applies to Establishment Clause claims, and determine that the Lemon-endorsement test is the appropriate vehicle for analyzing the First Amendment implications of same-sex marriage bans. In Part V, I raise--and dismiss--the primary substantive objections to same-sex marriage that are continually raised by opponents of same-sex marriage (and key sponsors of the Federal Marriage Amendment), demonstrating that all of them fail to have a rationally secular relationship to banning same-sex civil marriage. I then apply the Lemon-endorsement test to the sectarian definition of marriage that same-sex marriage bans enshrine into the law, showing that a reasonable observer would conclude that such bans endorse one form of religious marriage over another, which creates a sizeable class of political outsiders and violates neutrality principles. In Part VI, I conclude that, if the Establishment Clause really means what it says, same-sex marriage bans impose and endorse one set of religious precepts regarding marriage, resulting in an unconstitutional establishment of religion. (19)
I. DEFINING "MARRIAGE"
A. A Brief History and Overview
The idea that the state should--or even could--legally recognize same-sex relationships is relatively new. Baker v. Nelson, the first lawsuit seeking a marriage license for same-sex plaintiffs, was brought in Minnesota in 1971. (20) Although the Baker plaintiffs were unsuccessful, the case signaled to the nation that the modern gay-rights movement had marriage equality on its agenda.
Many states began to assess the potential constitutional infirmities of their common-law definitions of marriage or antiquated marriage statutes. Consequently, some states affirmatively outlawed the legal recognition of same-sex unions through judicial flat, (21) statute, or state constitutional amendment. (22) The number of states outlawing these unions has grown substantially since 2003 when Massachusetts recognized same-sex marriage in Goodridge v. Department of Public Health. (23) The November 2006 election cycle alone saw voters weighing in on seven state-level constitutional amendments to prohibit same-sex marriage; six were ratified. (24) To date, Arizona is the only state in which voters have repudiated an attempt to amend a state constitution to ban same-sex civil marriage. (25) As of this writing, forty-five states have some form of a same-sex marriage ban on the books. (26) Five of these states nevertheless provide some legal rights to same-sex couples. (27) The remaining five states and the District of Columbia have not passed a statutory ban or a constitutional amendment. (28) Of these, Massachusetts is the only state to affirmatively recognize same-sex marriage; (29) courts in the other five jurisdictions have so far refused to force their respective legislatures to recognize civil marriage rights for same-sex couples. (30) No state allows marriages between more than two individuals. (31)
Thirty-five years after Baker v. Nelson, (32) a majority of Americans still oppose allowing same-sex couples the right to marry. (33) However, a majority also believe that it is important to give same-sex couples some legal protections. (34) Moreover, the size of that majority is growing and has been for at least a decade. (35) Presumably, this is because more and more Americans are beginning to understand the hardship wrought upon gay and lesbian families who are denied the panoply of state and federal rights, benefits, protections, and responsibilities afforded by civil marriage. (36) If this liberalizing trend continues, a majority of Americans may soon come to believe that civil marriage should be made available to same-sex couples. At that time, we could expect that several jurisdictions might amend their definitions of marriage to permit same-sex civil marriage.
But what is the definition of marriage? Why should we amend it? Why should we not amend it? In undertaking this inquiry, we immediately encounter difficulty. Currently, marriage is defined on both semantic and substantive levels. First, the semantic: Those opposed to giving same-sex couples access to marriage claim that, because marriage has only ever been between "one man and one woman," that this is all that marriage could ever be. (37) Tactically, this tautology is useful in deflecting criticism of an anti-same-sex marriage position, because it inevitably leads to a "yes it is, no it isn't" banter that distracts from the substantive issue at hand.
Logically, however, this self-defining model of marriage is visibly undermined by its question-begging and circular reasoning. (38) By assuming the conclusion they wish to reach--that "marriage is marriage"--opponents of same-sex marriage have provided themselves with a pithy sound-bite--albeit one that fails to offer a substantive justification for itself. (39) As a lexicographical matter, the proposition "marriage is marriage" is inherently circular; it is impossible to divine the meaning of "marriage" without looking to sources of information beyond the word itself. Typically, however, opponents offer no additional normative reasons to explain why this definition of marriage is the only possible one, or for that matter, why any particular definition of marriage should remain static.
Moreover, the factual claim itself--that marriage has always been between only one man and one woman--is only half true: Polygamous marriage models have existed in many non-Western civilizations throughout history, and several currently exist today. (40) Narrowing the "marriage is marriage" definition to encompass only Western civilizations--or only the United States--also fails: Before Utah joined the Union, the early Mormon Church openly practiced polygamy, which establishes that the proffered definition is premised on historical inaccuracies. (41) Moreover, polygamous sects in Utah and the surrounding areas persist today. (42)
These brief analyses show why limiting our inquiry to only the semantic level proves unhelpful in discerning a normative definition of "marriage." Nevertheless, because the definitional argument is commonly encountered, it is addressed below in greater detail. (43)
Same-sex marriage advocates (44) must sidestep this semantic quagmire and instead examine the substantive issues that give rise to our definitional crisis. For our purposes, a primary method of defining substantive marriage will be to identify and distinguish marriage's civil and religious aspects. This cannot be achieved without identifying exactly what marriage is designed to do--i.e., identifying the purposes it is intended to serve. We must keep in mind, however, that any purpose we identify must clear the constitutional hurdles designed to check unbridled majoritarian will. (45) We may not develop or implement a model of marriage that inherently violates the Constitution. (46)
Opponents of same-sex marriage claim that marriage is instrumental in achieving ends that only opposite-sex couples can meet. (47) As such, we can characterize their preferred conceptions of marriage as very narrow. For example marriage is, according to opponents, designed to provide an "ideal environment" for raising children; by definition, this model must include only one father and one mother, whose "gender complementarity" will teach children proper sex roles within adult relationships. (48) This "ideal environment" is often said to be the best method by which social values and knowledge can pass between generations; ergo, the government should encourage "responsible procreation," or procreation within the confines of a pre-existing marriage. (49)
Whether by chance or by design, same-sex couples fall outside this articulation of marriage--because same-sex couples are inherently monogendered, they cannot procreate without assistance, and they cannot provide children with both a "mother" and "father" in the classic sense. As a result, opponents conclude that marriage should not be made available to same-sex couples.
Each of the opponents' arguments proceeds in a fashion similar to this one. By intentionally characterizing the purpose, nature, and function of marriage very narrowly, they are conveniently able to prevent same-sex couples from falling within the definition. Under this narrow sense of marriage, opponents thus conclude that marriage-qua-marriage cannot, by definition, be made available to same-sex couples, because "what they want does not exist." (50)
Conversely same-sex marriage advocates take a broader view, frequently conceiving of marriage as a choice-based institution that is designed to allow individuals to make autonomous decisions as to partner, family structure, and effective methods of values-transfer to children. (51) Indeed, one of the primary rebuttals to the "ideal" environment characterization of marriage is the very existence of divorce--if marriage is truly only about providing a mother and father for as many children as possible, then governments should necessarily make it much harder for married couples (and particularly those with children) to obtain a divorce. (52) Moreover, if marriage were only about encouraging "responsible procreation," couples that are infertile, elderly, or who do not want children should not be permitted to marry at all. (53) Yet, such prohibitions do not exist and seem intuitively absurd--but why? If Supreme Court precedent is any guide, marriage has been substantively reconceived as a private-ordering system that is not expressly tied to procreation and child-rearing; (54) thus, it would appear that marriage-qua-marriage--at least as opponents have conceived of it--does not exist. (55) If this is indeed the case, then, as a friend of mine once said, "What's the big deal with letting two people own property together?"
This definitional question has traditionally sounded in two constitutional doctrines: due process and equal protection. (56) It is important to briefly examine these doctrines before addressing the substantive Establishment Clause question, because the level of scrutiny and analytical methods employed in these areas will prove to be highly relevant. (57)
First, the definitional question we face implicates "fundamental rights" under substantive due process. Opponents of same-sex marriage seek to define the right to marry very narrowly, while supporters seek a broader definition. (In other due-process cases, the outcome turned on whether the narrow or broad definition of the right prevailed, (58) just as it does here.) If a court construes the claimed right to marry narrowly, then same-sex marriage advocates have a difficult road to hoe: "[T]he right to marry someone of the same sex" (59) is not fundamental, because same-sex civil marriage is not "deeply rooted in this Nation's history and tradition;" (60) as a result, the government's interest in providing only opposite-sex couples with civil marriage receives rational-basis review. Analytically, same-sex marriage advocates are thus required to establish two propositions: (1) preventing same-sex couples from marrying is not rationally related to the state's interests in sustaining opposite-sex marriage and (2) allowing opposite-sex couples to marry is also not rationally related to the state's interests. Stated differently, same-sex marriage advocates are essentially required to establish that the state's purported interests in maintaining opposite-sex marriage are not legitimate. (61) This is very difficult for two reasons: (1) there are many reasons that governments have opposite-sex marriage, and courts will probably find at least some of them to be legitimate; and (2) it is more likely than not that courts will determine opposite-sex marriage rationally advances these interests. Of all courts-of-last-resort to review due-process claims for same-sex marriage, only Goodridge has held that the state's asserted interests did not survive rational-basis review tinder a due process claim; (62) this is partly because the Massachusetts Supreme Judicial Court construed the right in question to be "the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare." (63) No court yet has found a fundamental right to same-sex marriage per se.
Second, our definitional question also raises equal-protection concerns. Laws that limit marriage to heterosexuals single out sexual minorities (64) for disparate treatment based on a single trait. If courts begin to find that sexual minorities--particularly homosexuals--comprise a suspect class, they would begin to undertake a heightened scrutiny of the classifications drawn by heterosexuals-only marriage laws. Technically speaking, having a heterosexual sexual orientation is not a prerequisite to marriage: As many opponents delight in noting, homosexuals remain free to get married--they just have to marry someone of the opposite sex. (65) Nevertheless, under heightened-scrutiny review, a court would examine the classification to determine what group is most likely to be disparately impacted by the law. Clearly, same-sex civil marriage bans have no legal effect on heterosexuals, who continue to enjoy the right to engage in a course of action consistent with the nature of heterosexuality: entering into a relationship with someone of the opposite sex and subsequently marrying that individual. But these bans have a substantial legal effect on homosexuals, who are prevented from engaging in a course of action consistent with the nature of homosexuality: entering into a relationship with someone of the same sex and then marrying that person. As a result, homosexuals as a class are prevented from engaging in a desired course of action based on a single trait, and the marriage bans that draw these classifications would face an uphill battle within a heightened-scrutiny regime.
Unfortunately, the equal-protection heightened-scrutiny claim has not caught on in either federal or state courts. (66) As such, rational-basis review is currently all that is available for same-sex marriage advocates. Therefore, advocates must undertake an analysis similar to the one outlined above for due process. Essentially, they must establish that a heterosexuals-only definition of marriage irrationally discriminates against homosexuals as homosexuals. Said differently, advocates must establish that the state has no legitimate interest in excluding homosexuals from marriage when it makes marriage available to heterosexuals.
Because marriage is, in due-process terms, an individually-based right and not a couple-based right, it makes sense to characterize the equal-protection claim here along the lines of sexual orientation--a classification based on sexual orientation impacts individuals and not couples. However, the equal-protection violation could also be characterized as challenging the disparate treatment of opposite-sex and same-sex couples. Regardless of how the argument is cast, the methodology of the rational-basis analysis remains the same. (67)
All told, advocates have had more success making equal-protection claims than due-process claims: All courts that have ruled in favor of same-sex couples have invoked equal protection; these cases have universally resulted in civil unions. Only Goodridge resulted in "marriage," most likely because the Massachusetts Court also invoked due process; to date, it is the only court to have done so. Had Goodridge found only an equal-protection violation, the case might well have resulted in civil unions, just like the others. (68)
As these brief discussions show, the definitional question can be resolved in favor of same-sex civil marriage within the scope of either doctrine: Under substantive due process, we must adopt a broad definition of the "right to marry," regardless of whether a fundamental right is implicated; under equal protection, we must identify homosexuals as a suspect class deserving of heightened scrutiny. In rarer instances--i.e., Goodridge (69) or Lewis (70)--we might determine that the state's interest is so lacking that neither of these actions is prerequisite to holding in favor of same-sex civil marriage or civil unions.
The arguments for same-sex civil marriage are numerous, nuanced, and complex. Because I am not advancing a due-process or equal-protection argument in favor of same-sex marriage, rehearsing them here is not necessary. (71) For our purposes, it is important to keep in mind the courts' consistent application of rational-basis review and the accompanying analytical method.
B. The Establishment Clause and Our Religious Heritage
In our pluralistic society, religious beliefs and sectarian texts like the Bible are considered by many to be unacceptable grounds for developing generally-applicable social and political policy. (72) The Religion Clauses of the First Amendment reflect the Framers' understanding that, when society conflates worldly and spiritual authorities, it undermines both. Religions cannot flourish when subjected to governmental meddling, and republican governments cannot survive when they are hijacked by religious dogma. The English settlement of New England began as a direct result of religious persecution against the Puritan belief system; the Settlers' own experiments with religious governance showed that striving toward an ideologically-homogenous state led to dangerously unstable and tyrannical results--i.e., the Salem witch trials. Against this instructive history, the Framers drew the Religion Clauses to establish two primary goals: (1) keeping the government out of the pulpit (the Free Exercise Clause), and (2) keeping the pulpit out of the government (the Establishment Clause).
The American legal system has historically assumed that there is no inherent Establishment Clause problem with the form of marriage it inherited from the English common law. (73) Indeed, advocates of same-sex marriage have brought an Establishment Clause claim in only one case, Dean v. District of Columbia [Dean I]. (74) It is ironic, then, that in dismissing the Dean I plaintiffs' challenge as "patently frivolous," the trial judge cited to the Bible and to specific Judeo-Christian beliefs regarding the immorality of sodomy and the sinfulness of possessing a homosexual status. (75) Unsurprisingly, the plaintiffs abandoned their Establishment Clause claim on appeal. (76)
The Dean I trial court relied heavily upon the Supreme Court's cases Lemon v. Kurtzman, (77) McGowan v. Maryland, (78) and Bowers v. Hardwick. (79) The Court has subsequently altered both Lemon and McGowan since Dean I, and their applicability to First Amendment challenges has been largely supplanted by newer articulations of the constitutional values underpinning the Establishment Clause. (80) Moreover, Bowers was overruled explicitly in Lawrence v. Texas; (81) as a result, it is an outstanding question whether bare religious disapproval of homosexual conduct still constitutes a legitimate justification for reserving civil marriage to opposite-sex couples only. (82) No cases since Dean I have raised the Establishment Clause question addressed in this Article. Only recently have government officials (83) and commentators (84) begun to recognize the importance of separating church from state in the course of resolving the definitional crisis regarding marriage.
American society and governments have historically--and in the past few years, deliberately--conflated civil marriage with religious marriage. In colonial times, English ecclesiastical marriage served as the model for what is frequently termed "traditional marriage." (85) Despite its religious moniker, ecclesiastical marriage was derived in part from the feudal system of property, by which parents arranged marriages between the children of similarly-stationed families in order to protect family interests in land. The church's role in marriage was twofold: (1) to provide a divine blessing for the marriage, and (2) to stand in loco gubernationis for the Crown, similar to how a modern-day state or federal agency governs under the auspices of its respective executive branch. As a result, the church served both religious and legal needs because the English monarchy had no administrative system akin to the modern American system. (86)
With the rise of the American administrative state, the church found its role in the legal--or "civil"--part of marriage increasingly limited: Parties seeking only a "civil" marriage can circumvent the religious aspects of marriage entirely, as each state vests certain government officials with the power to solemnize a marriage. Religious leaders have retained the power to solemnize a marriage on behalf of the government--and legal presumptions favoring validity may arise as a result of a religious marriage ceremony--but the parties generally must file for a marriage license from the state before a marriage becomes fully valid. (87)
Modern conceptions of what constitutes a "civil marriage" are relatively universal: "Civil marriage" occurs when the government recognizes the legal existence of a relationship between certain kinds and numbers of individuals, and as a result of that relationship, vests in those individuals a bundle of legally-enforceable rights, benefits, and responsibilities. Both opponents and advocates of same-sex marriage proffer definitions of marriage that fall within this generic teleological conception of marriage: What opponents of same-sex marriage call "traditional marriage" is the "one-man, one-woman" model of civil marriage that prevails in all jurisdictions save Massachusetts; as mentioned above, same-sex marriage advocates characterize civil marriage as a two-party, choice-based institution, regardless of the gender of the parties. Both of these definitions classify relationships along lines of quality (i.e., gender of the parties) and quantity (i.e., number of parties), (88) but they give a different weight to each of the factors. Advocates place almost no weight on the quality of the parties, while opponents give each factor equal importance.
Religious notions of "marriage" vary widely and depend both upon the creed of the religious institution and upon the particular adherents. Teleologically, modern permutations of "religious marriage" range from two-party marriage (including same-sex marriage) to man-woman marriage (so--called "traditional marriage") to polygamy. Table 1 summarizes the positions of major American and world religions regarding the nature of marriage.
This list of religious beliefs is far from exhaustive, and it is not intended to characterize non-Judeo-Christian faith communities one-dimensionally. It is indeed likely that theological and philosophical divisions exist within Buddhist, Islamic, and Hindu traditions that parallel the theological divisions among Jews and Christians over the issues of homosexuality and same-sex marriage. For our purposes, however, this table is sufficient to show that, both in America and worldwide, there is no religious consensus on the meaning of "marriage."
Opponents of same-sex marriage have pointed out that, regardless of this diversity of belief, the vast majority of religious observers in America belong to groups that either oppose or are theologically suspicious of homosexuality and same-sex marriage. (89) Undoubtedly, the opponents' suggestion is that such an incredible majority of believers cannot be wrong about the meaning of marriage. While it is true that a huge majority of believers belong to faith traditions that profess belief in exclusively opposite-sex marriage, it is an oversimplification to assume that every believer within each one of those faith traditions also believes that same-sex religious marriage is theologically unsound. Such a suggestion belies the complexity of most faith systems and willfully mischaracterizes the ongoing theological shift occurring within several large, mainstream churches.
Consider: the list of religious groups in the "Traditional Marriage" column is the largest of any column. However, a nearly-equal number of religious groups are listed in the "Traditional Marriage"-Plus column, and if we add in the number of religious groups in the Two-Party Marriage column, the total exceeds the number of groups listed in the first. Of the groups listed under "Traditional Marriage"-Plus, a significant number have simultaneously affirmed opposite-sex marriage and begun to grapple with the theological implications of same-sex marriage. This reveals that religious beliefs regarding same-sex marriage are neither static nor universally-held within a single faith system--in fact, a heated debate is currently taking place within major religious groups around the nation. (142)
Finally, it is critical to understand that, just because a particular religious group rejects same-sex religious marriage, it does not necessarily follow that the group also rejects same-sex civil marriage. As mentioned above, some religious groups regard the legal right to marry as a civil or human right, regardless of their own beliefs about the morality or immorality of homosexuality. (143) Likewise, individuals within faith traditions are not of one mind--and as voters, they may vote against same-sex marriage bans as a matter of civic conscience, while simultaneously believing that homosexuality is sinful or theologically problematic.
And what of non-theists? Secularists are found throughout America. By its nature, secularism rejects religion and mysticism, instead drawing upon philosophy and science as sources of personal morality. As a whole, Secularists favor same-sex civil marriage." (144) For comparison purposes, the beliefs of Secularists are laid out in Table 2.
These tables are not an exercise in mere exhaustiveness--establishing the diversity of religious and Secularist opinion in America is central to the point. America's ongoing failure to distinguish religious from civil marriage has led to two constitutionally-impermissible results: (1) the government is allowing a majority of religious believers to impose a theological definition of "marriage" upon a significantly-sized minority of non-believers and different-believers, without offering a rationally secular justification for the mandated definition; and (2) by allowing this to occur, the government is endorsing the majority's definition of religious marriage, and as a result, has created a sizeable class of political outsiders who are being told that their religious beliefs are, at best, less-worthy than the majority's or, at worst, simply wrong. The Establishment Clause expressly forbids such explicit sectarianism. (151)
II. A PRIMER ON THE FEDERAL MARRIAGE AMENDMENT AND ITS KIN
A. What Are Same-Sex Marriage Bans and What Do They Do?
Before we undertake our constitutional analysis, it is important to understand what same-sex marriage bans are and what they are intended to accomplish. Typically, same-sex marriage bans arise as either constitutional amendments or statutory revisions to pre-existing Marriage Acts, and they come in two general flavors: those that ban legal recognition of same-sex marriages performed in other jurisdictions--also known as Defense of Marriage Acts (152)--and those that permit only opposite-sex marriage to the exclusion of all others. (153) Many states that have adopted same-sex marriage bans have adopted both types. (154)
Whether stated positively (e.g., "To be valid or recognized in this State [Alaska], a marriage may exist only between one man and one woman." (155)) or negatively (e.g., "Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina." (156)), the legal effect is the same: Same-sex civil marriage bans prohibit the legal recognition of any civil or religious marriage between persons of the same sex.
Some bans go even further, prohibiting the creation of marriage-like legal arrangements or the conferral of marriage-like benefits (commonly referred to as "the legal incidents" of marriage). (157) These broad-based "legal-incidents" bans are even more sweeping than simple same-sex marriage bans: Whether by accident or by design, they bar same-sex couples from obtaining even marginal legal protections for their relationships.
Proponents of "legal-incidents" bans claim that they are only intended to prevent legislatures and municipal governments from allowing same-sex couples to enter civil unions and domestic partnerships. (158) Despite this assertion, it is an outstanding question whether these bans potentially reach private relationship contracts, wills, and powers of attorney. (159) For example, Michigan's state attorney general recently determined that Michigan's constitutional amendment bars state and local governments from offering employment benefits to same-sex couples as domestic partners. (160) Similarly, Ohio's amendment has been read to bar unmarried heterosexual domestic-violence victims from bringing certain suits against their batterers in Domestic Violence Court, because standing to bring these claims is limited to persons in a legal familial relationship, which is only created through blood or marriage. (161)
At the federal level, there is already a statutory ban on same-sex marriages: the federal Defense of Marriage Act (DOMA). Enacted in 1996, DOMA was codified in two separate titles of the United States Code. First, DOMA enacted a garden-variety ban on same-sex marriage by establishing a "one-man, one-woman" definition of marriage for the purposes of federal law. (162) Until DOMA, there had never been a federal definition of marriage; moreover, the Supreme Court has long recognized that the regulation of family law--including determining what constitutes "marriage"--lies beyond the reach of federal authority, instead falling squarely within the states' regulatory powers. (163) DOMA's second part purported to fashion an exception to the Full Faith and Credit Clause (164) by allowing states to refuse to recognize any same-sex marriage performed in another jurisdiction. (165) The constitutionality of DOMA has been the subject of much speculation and analysis. (166)
The proposed Federal Marriage Amendment (FMA) is designed to preempt any constitutional challenges to DOMA. (167) The FMA is a "legal-incidents" ban that first appeared in 2002, when Rep. Ronnie Shows, D-Miss., introduced it to the Second Session of the 107th Congress as H.J. Res. 93. (168) In 2003, the 108th Congress saw H.J. Res. 56 (169) and S.J. Res. 26 (170) introduced in the First Session, by Rep. Marilyn Musgrave, R-Colo. and Sen. Wayne Allard, R.-Colo., respectively. Neither of these amendments got off the ground in a meaningful way.
Since 2003, Rep. Musgrave and Sen. Allard have introduced five versions of the FMA, four of which have come up for a vote in their respective chambers. First among the subsequent versions was S.J. Res. 30, (171) introduced in the 108th Congress's Second Session. S.J. Res. 30 was replaced later on in the Session with S.J. Res. 40 ("Allard Amendment I") (172) and its companion bill in the House, H.J. Res. 106 ("Musgrave Amendment I"), (173) which were the first two versions of the FMA to come to the floor of either chamber. Neither S.J. Res. 40 nor H.J. Res. 106 passed its respective chamber with the requisite two-thirds majority. In the Second Session of the 109th Congress, renewed efforts to revive the FMA spawned S.J. Res. 1 ("Allard Amendment II") (174) and H.J. Res. 88 ("Musgrave Amendment II"). (175) Both S.J. Res. 1 and H.J. Res. 88 came up for a vote in their respective chambers and failed for a second time. (176)
The versions of the FMA that concern us here are the four that came up for a vote on the floor of Congress. The Musgrave and Allard Amendments were virtually identical each time they were considered; Rep. Musgrave and Sen. Allard were joint co-sponsors of one another's proposed amendments. As a matter of interpretation, then, the legislative histories of these four versions of the FMA should and will be considered as a whole. To that end, when I refer to the FMA, I am referring collectively to these four proposals.
B. Who Supports the FMA?
Many individuals have testified in hearings before Congress in favor of the FMA. With only two possible exceptions (177) and one notable one, (178) every single one of these witnesses was a fundamentalist Christian, Mormon, or Catholic, each vested with strong religious credentials earned from years of working on behalf of fundamentalist religious causes. As discussed above in Table 1, all of the religious traditions to which these witnesses belong vehemently oppose homosexuality and same-sex marriage--and for explicitly religious reasons. Table 3 lists all of the witnesses who testified in favor of the FMA in congressional hearings.
Interestingly, despite these witnesses' obviously religious viewpoints, each one employed a carefully-crafted non-religious vocabulary to advance the secular-sounding arguments dismissed below. (179) Couched in safe, secular-ish terms, each witness's arguments were cleverly--albeit transparently, to the keen observer--designed to mask the FMA's invidious purpose of imposing religious marriage onto an unsuspecting nation.
It is impossible to rationally conclude that these witnesses had a genuinely secular purpose in mind or actually believed the secular implications of their testimony. How do we know this? Because of the strong religious pedigree of each of the witnesses. The idea that these individual witnesses--decidedly-religious, almost to a person--somehow prefer secular-ish conceptions of "traditional marriage"--a minority position among Secularists (180)--to their deeply-held religious beliefs again defies common sense. (181)
Why then, if the supporters of the FMA are as staunchly religious as their credentials would lead us to believe, would they resort to arguing from a Secularist viewpoint? Only one Secularist, Stanley Kurtz, was put forward to lend credibility to the claim that the FMA is based on secular principles--and his consequentialist legal theories are so irrational and have been so heavily criticized (by writers on both ends of the political spectrum) that they are not creditable. (217) Instead, delineating the FMA's secular purposes was left largely to the say-so of numerous highly-religious witnesses.
This is not to say that the mere presence of a creditable Secularist would cure the underlying constitutional infirmities of the FMA. Even if one were put forward, if there is no rational secular relationship between the purposes given for the FMA and the action that the law takes (banning same-sex civil marriage), (218) then no amount of secularist pontification would be able to justify it: The purpose of the law would still be religious, even if not on its face. Thus, it would be void under an endorsement analysis. (219)
Still, why does this matter? Taking a page from the Establishment Clause's sister doctrine is instructive. When courts hear Free Exercise claims, they frequently inquire as to the sincerity with which the claimed adherents hold their beliefs. (220) And so it should be in the search for a secular purpose: Divining a secular purpose for a government action demands an inquiry into the sincerity with which its proponents believe the action to be genuinely secular. Merely claiming a secular purpose does not mean that one exists. If that were the rule, then the Establishment Clause would be undermined from within: Without a more searching inquiry, no court could ever discern an invidious religious purpose, as the central question is whether the claimed secular purpose is merely pretextual for a religious one.
This has nothing to do with evaluating the content of one's beliefs and everything to do with whether actually believes that the claimed secular purpose is actually secular. If courts are competent to undertake inquiries into purpose at all, then they must necessarily be competent to determine whether the proponents of a law are subtextually motivated by religious beliefs.
Finally, one might question my use of the FMA as exemplary of all same-sex marriage bans or as even relevant at all. Indeed, it may seem silly to evaluate the constitutionality of a constitutional amendment. However, because similar constitutional concerns exist for DOMA and for individual state bans on same-sex civil marriage (whether statutory or constitutional), the Establishment Clause discussion remains highly relevant. At the time of this writing, no new versions of the FMA have been introduced into the First Session of the 110th Congress. Nevertheless, if the opponents of same-sex marriage are true to their word, (221) efforts to amend the federal Constitution are far from over. Future Congresses will almost certainly face incarnations of the FMA that are essentially replicas of those that--so far--have been voted down. These yet-unwritten versions of the FMA will undoubtedly implicate the same Establishment Clause concerns that are addressed here.
Barring a significant change in opponents' rhetoric, the so-called "secular" arguments used to justify prior bans will be recycled anew for the consideration of future legislators. Therefore, it is important to debunk these pretexual arguments now, to better equip same-sex marriage advocates for future debate and litigation.
III. WHERE ARE WE GOING, AND WHY ARE WE IN THIS HANDBASKET?: A SHIFT IN FUNDAMENTAL(IST) RHETORIC
"Overt bias, when prohibited, has oft-times been supplanted by more cunning devices designed to impart the appearance of neutrality, but to operate with the same invidious effect as before."
--Judge Simon E. Sobeloff, in Griggs v. Duke Power Co. (222)
Until recently, same-sex civil marriage advocates were entirely disempowered in their attempts to obtain any legal recognition of same-sex relationships. (223) While successes have come in fits and starts, with several key state court decisions being handed down recently and others on the way, (224) the legal recognition of same-sex relationships is in a state of constant flux and upheaval. Religion is playing a key role on both sides of the debate. (225)
Historically, the Supreme Court has described marriage using explicitly religious language, portraying it as a "holy estate" (226) or "sacred precinct" (227) that could only be entered into by one man and one woman. Indeed, in early same-sex civil marriage cases, courts invoked similar language in determining that legal recognition of same-sex relationships was improper. (228) As discussed above, one trial court cited both the Bible and specific Judeo-Christian beliefs in disposing of a claim seeking same-sex civil marriage rights. (229)
Currently, the proponents of same-sex civil marriage are not raising claims of any religious liberty interests. (230) Opponents of same-sex marriage are tiptoeing around the subject of religion, mostly claiming that allowing same-sex civil marriage would limit the availability of religious exemptions from anti-discrimination laws that protect homosexuals--said more plainly, opponents claim that allowing same-sex civil marriage will hamper Christians' ability to (1) publicly speak out against homosexuality and (2) act on those beliefs in a functionally-discriminatory way; therefore, their right to free exercise of religion trumps the government's interest in preventing invidious discrimination based on sexual orientation. While the religious-freedom claim is addressed more fully below, (231) it is important to note that, for the bulk of opponents, Free Exercise is the only context in which they currently appear comfortable advancing affirmatively religious arguments. (232)
A. The Theoretical Underpinnings of Preservationism
Over time, as American society as a whole has grown more tolerant--albeit not totally accepting--of homosexuality, (233) opponents of same-sex civil marriage have learned to couch their arguments in positive-sounding, seemingly unbigoted terms, and to decry any "hatred" or intent to "discriminate" against anyone's "lifestyle choices." (234)
As a result, once overtly-religious rhetoric has been largely supplanted with what Prof. Edward Rubin terms "post hoc, secular-sounding argument[s]." (235) As Prof. William Eskridge has pointed out, this shift in language and tone does not show that the substance of the religious arguments has abated--instead, it indicates that anti-gay rhetoric and discourse has "sedimented," a process by which the old religious arguments have evolved to become more sophisticated and secular-sounding. (236)
Describing the foundation of anti-gay rhetoric as "religious natural law theory," Eskridge notes that religion forms the bedrock for these newer, secularized arguments used to "promote" opposite-sex civil marriage. (237) This "sedimentation" has layered three distinct levels of anti-gay rhetoric upon one another, like a wedding cake: (1) the bedrock layer is "God's law," a religiously-derived form of natural-law theory that emphasizes the moral depravity of homosexuality, bolstering these claims with "objective" scientific data purporting to show that homosexuality and same-sex relationships are bad for society; (238) (2) the constitutional tier protects "normal" (239) (heterosexual) people's right to be free from exposure to homosexuals, because such exposure could make heterosexuals uncomfortable or corrupt their children; (240) and (3) the "no promo homo" frosting seeks to prevent any suggestion that the government "promotes" homosexuality as an "acceptable lifestyle choice"--particularly to children. (241)
Eskridge concludes that the discourse has layered itself in this way in order to appeal to the broadest cross-section of anti-gay constituencies: (1) the religious fundamentalists who believe that Leviticus 18:22 (242) and 20:13, (243) and Romans 1:26-27 (244) should govern modern legal treatment of homosexual behavior and orientation; (2) the moral bigots who believe the various scientific claims--derived from religious natural-law theory (245)--that homosexuals and same-sex relationships are bad for society; and (3) the "normal people" who assert their collective "constitutional right"--typically claiming free exercise of religion (246)--to avoid exposure to homosexuals. (247) At the heart of this layered discourse lie two common elements: (1) religious belief and (2) the opinion that such beliefs should guide the government's treatment of homosexuals in the public sector.
Prof. Reva Siegel takes a slightly different approach to conceiving the modernization of disempowering anti-minority rhetoric. Characterizing the phenomenon as "preservation through transformation," (248) she notes that "struggles over group inequality can transform the rules and reasons by which social stratification is enforced and justified." (249) Transformation occurs antiphonally: first, members of a disfavored minority--e.g., same-sex couples, or homosexuals generally--begin to successfully discredit the historical rhetoric used to justify their continued disempowerment. In response, the majority simply modernizes its justificatory rhetoric--often through the use of code words, (250) making only superficial adjustments to its excuses for discrimination. This serves to perpetuate the power imbalance without addressing head-on the substantive question of why the minority deserves to be disempowered--instead, it brilliantly smoothes over the conflict, leaving the majority comfortable with its newfangled explanation for why it should remain superior.
When the minority realizes that, despite the facial shift in rhetoric, nothing of substance has changed, the cycle begins anew. This call and response continues ad infinitum until one of the following occurs: (1) the majority's arguments to support continued disempowerment eventually become so attenuated that they are no longer creditable; (2) the majority tires of the masquerade and ceases to engage in modernization; or (3) the majority actually liberalizes and decides that there are no longer adequate substantive justifications for continued disempowerment. Only then does equalizing change become possible.
B. Preservationism: An Application
A prime example of "preservation through transformation" and "sedimentation" is the veritable evolution of "creation science" into "intelligent design." In Kitzmiller v. Dover Area School District, a school board passed a resolution requiring teachers to read a statement offering "intelligent design" as an alternative "scientific" theory to evolutionary biology. (251) Several parents from the area challenged the resolution as an unconstitutional establishment of religion. (252) At the head of its analysis, the court traced the refinement of Fundamentalist rhetoric about evolutionary biology from the Scopes Monkey Trial (253) to the present day: During the Twentieth Century, as more and more public-school teachers and public-school systems eschewed blatantly-religious instruction in favor of teaching evolutionary biology in public-school classrooms, it became harder for the Fundamentalists to justify their desire for the teaching of facially-religious beliefs in public schools. In response, the Fundamentalists changed their rhetoric, but only incrementally, and only as much as was necessary to pass muster under ever-more-stringent constitutional standards. Most importantly, the underlying religious purpose never changed. (254)
In Scopes, it was considered constitutionally permissible to bring a criminal prosecution for teaching evolutionary biology in lieu of biblical creationism. (255) Forty years later, in Epperson v. Arkansas, the Supreme Court struck down statutory prohibitions against teaching evolutionary biology in public schools. (256) In response, Fundamentalists began to advocate for laws requiring "balanced treatment" of biblical creationism and evolutionary biology--teachers wishing to teach evolutionary biology were forced to devote equal time to biblical creationism. This too, was struck down by the Sixth Circuit Court of Appeals in Daniel v. Waters. (257) In response, Fundamentalists began to reason that scientific-sounding language would help their religious purpose to survive constitutional scrutiny: hence "creation science." When, in Edwards v. Aguillard, the Supreme Court struck down a requirement that "creation science" be taught alongside evolutionary biology, (258) "intelligent design" was born.
In striking down the Dover School Board's resolution as an unconstitutional establishment of religion, the Kitzmiller court recognized the evolution of the Fundamentalists' discourse for what it was: preservation through transformation. The Fundamentalists had simply layered new, scientific-sounding language over their previously-religious rhetoric, but the underlying message and purpose remained unchanged.
As the evolution case reveals, Siegel's "preservation through transformation" formulation synthesizes with Eskridge's "sedimentation" theory rather nicely: When the disfavored minority empowers itself, the language used to perpetuate the minority's disempowerment transforms--or sediments--itself into a more politically-palatable rhetoric, while maintaining a broad-based appeal to a majority whose bigotry remains palpable.
Both "preservation through transformation" and "sedimentation" have occurred throughout the debate over same-sex civil marriage. As it has become less fashionable to use expressly religious rhetoric to justify holding an anti-gay position, it has become more important for religiously-motivated opponents of same-sex marriage (259) to couch their arguments in secular-sounding terms. Currently, opponents rely mostly on social-science evidence and broader appeals to "morality"; express citations of religious doctrines are rare. Still, it is necessary for these religious believers to communicate with one another, so they have developed code words that signal a belief in the unstated--but ever-present--religious objective, which is to impose a specific religious definition of marriage on the entire nation.
Catchphrases such as "traditional marriage," "ideal environment," "gender complementarity," and "values-transmission" abound. They are derived from the larger "family-values"-talk that permeates many religious spheres. However, because phrases like these straddle the line between sounding comfortably secular and signaling a religious objective, it is not always obvious when modernized anti-gay discourse is afoot. With experience, however, same-sex civil marriage advocates will learn to decode this rhetoric and expose the underlying religious objectives to all who would see them. The same-sex marriage debate is drenched with this "family-values" newspeak. I will refer to the tactical use of such modernized discourse as "preservationism."
IV. MODERN ESTABLISHMENT CLAUSE JURISPRUDENCE: "HOPELESS DISARRAY" (260)
"[W]e do not count heads before enforcing the First Amendment."--Justice Sandra Day O'Connor, in McCreary County v. ACLU (261)
Before same-sex civil marriage bans can be properly analyzed under the Establishment Clause, it is important to ascertain the current constitutional landscape that applies to such bans. Identifying background principles that are universally agreed-upon has proven to be a Sisyphean task for the Supreme Court. For example, consider Everson v. Board of Education of Ewing, (262) the first modern-day case to discern a durable theory of the Establishment Clause. Everson presented a deceptively simple question: Is it an impermissible establishment of religion for a state to subsidize transportation for students attending certain private religious schools, but not all private schools, whether secular or religious? The Court voted 9-0 in favor of the now-famous "wall of separation between church and state" principle handed down by Justice Black. (263) All Justices concurred in Black's articulation of what might be described as basic neutrality rules:
Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State. (264)
Even so, the Court divided 5-4 over whether the transportation program constituted an establishment of religion--the majority concluded that it did not, while the dissent concluded that it did. Why? Because the dissenting Justices had actually sought a more stringent set of neutrality rules than the ones adopted by the majority:
The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion. (265)
Regardless of which of these conceptions one prefers, it seems that the Court took a unified, aggressive stance in favor of the government remaining neutral in its treatment of religious affairs, both among religions and between religion and irreligion.
Fast-forward to 2005. Heard, decided, and announced together, the twin cases of McCreary County v. ACLU (266) and Van Orden v. Perry (267) are the bellwether of present-day Establishment Clause jurisprudence. But simply put, the opinions are a mess. Like Everson, McCreary County and Van Orden also presented a deceptively simple question: In what context, if ever, is a government-sponsored display of the Ten Commandments on government-owned property constitutional? Said more broadly, where do we draw the line between displays that acknowledge America's religious heritage and those that actually "establish" religion?
The Court answered the question two ways: The McCreary County displays were struck down while the Van Orden display was allowed. (268) The McCreary County displays were in two Kentucky county courthouses, (269) and the Van Orden display was on the grounds of the Texas State Capitol. (270) Although the specific context and background of each display varied, and the outcome of each case differed, the Justices generally wrote as if they were addressing a single case, rendering a total of ten opinions across the two cases: three in McCreary County and seven in Van Orden. (271)
Of all that might be said about these cases, they begged for the Court to articulate a unifying principle and stick to it. In rendering their ten opinions, the Justices struggled to delineate an analytical method that was not susceptible of substantive criticism from the other side. Still, with Justice Breyer (272) and Justice Thomas (273) providing two notable exceptions, the Justices fell neatly across two interpretive schools: the Lemon-endorsement test and the historical-acknowledgement test. (The liberal wing of the Court applied the former, and the conservative wing of the Court applied the latter.) The tests are comprised of starkly contrasting analytical methods, which the Justices have drawn from their various schools of constitutional interpretation.
Save for Justice Breyer's defection in Van Orden, a five-Justice majority emerged in McCreary County in favor of applying the Lemon-endorsement test. As discussed below, the Lemon-endorsement test was derived from the longstanding neutrality principles articulated in Everson. However, given the recent turnover of Justices, and most notably the replacement of Justice O'Connor with the decidedly more conservative Justice Alito, it is unclear whether the liberal wing of the Court will have the last word on resolving this doctrinal fracture. As such, it is important to at least identify the competing principles that caused the Court to fracture so badly in these cases. Thus, a portion of the following discussion will address the historical-acknowledgment test, despite the fact that for now, the Lemon-endorsement test is the controlling framework applicable to Establishment Clause claims.
A. The Lemon-Endorsement Test: Context-Specificity and the Requirement of Government Neutrality Toward and Among Religions
Over the last thirty years, various majorities of the Court have employed two tests in analyzing Establishment Clause questions: the "Lemon test" and the "endorsement test." Both of these tests are the direct offspring of the Court's longstanding recognition that the Establishment Clause calls for government neutrality both among religions and between religion and irreligion. (274) Over time, the two tests have merged into a single endorsement analysis steeped in neutrality ideals.
1. The Lemon Test
The famous "Lemon test," announced in Lemon v. Kurtzman, (275) held that government actions are unconstitutional under the Establishment Clause (1) if they have no valid secular purpose, (2) if they have the effect of establishing religion, or (3) if they result in unnecessary government "entanglement" with religion. (276) Soon after the test was announced, the Court quickly qualified it, noting that the three factors are "no more than helpful signposts." (277) Over time, several members of the Court have criticized Lemon as unhelpful in analyzing certain Establishment Clause questions, and at times, the Court has simply not applied it. (278))
2. The Endorsement Test
As Lemon proved dissatisfying to more and more Justices, the "endorsement test"--in reality, a gloss on Lemon--became a more palatable alternative to some. Justice O'Connor originally postulated the test in her concurrence in Lynch v. Donnelly, (279) in part because the Lynch majority used the word "endorsement." (280) O'Connor subsequently codified the test in County of Allegheny v. ACLU, Greater Pittsburgh Chapter, (281) with five Justices signing on to its basic principles. (282)
Essentially, the endorsement test asks whether a government action appears, to the reasonably informed observer, (1) to have the purpose or effect of (2) specifically endorsing or rejecting (3) a religion or a religious belief. (283) Under this articulation, the first prong of Lemon--valid secular purpose--is refashioned into a threshold question, and the third prong of Lemon--entanglement--is essentially discarded. The test also mandates that the government's action cannot render "adherence to a religion relevant in any way to a person's standing in the political community." (284) In County of Allegheny, O'Connor laid out the key values underlying the test:
If government is to be neutral in matters of religion, rather than showing either favoritism or disapproval towards citizens based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community. An Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization, but fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. (285)
Another way to lay out the test is to ask the following four questions: (1) As a threshold matter, is there a valid secular purpose for the government's action? If no, then the action establishes religion and is unconstitutional. (286) If yes, then we apply the following endorsement analysis. (2) To the reasonable observer, does the government's action have the purpose of endorsing a religion or religious belief? If yes, then the action endorses religion and is unconstitutional. If no, then (3) to the reasonable observer, does the government's action show favoritism to particular beliefs or convey disapproval to others, such that it has the effect of endorsing religion? If yes, then the action endorses religion and is unconstitutional. If no, then (4) to the reasonable observer, does the government's action either create a class of outsiders or render a person's religious beliefs relevant to her standing in the political community? If yes, then the action endorses religion and is unconstitutional. If no, then the action is constitutional.
This series of questions synthesizes the basic elements underlying O'Connor's original endorsement test. The test was not immediately popular, and the conservative Justices never really signed on to it. (287) Additionally, the Court initially struggled to determine what specific knowledge is imputed to the "reasonably informed observer." (288) However, all Justices supporting the endorsement test agree that government actions "may not prefer one religion over another or promote religion over nonbelief," (289) which seems to be a reasonable position, considering the Court's longstanding precedent. (290)
In McCreary County and Van Orden, the Justices began to synthesize the Lemon and endorsement tests within the broader framework of neutrality rules. In his McCreary County majority opinion, Justice Souter emphasized the values underpinning his dissent in Van Orden: (1) the impact of the display's religious content on the reasonable observer; (291) (2) the presence or lack of a larger coherent plan, of which the religious display constitutes but a part; (292) and (3) the significance or importance of the display's location, particularly when it is situated on civic or government property. (293) Souter also affirmatively embraced the neutrality principle in his own Van Orden dissent. (294)...
|
