Gary J. Simson (Mercer University School of Law) has posted Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause. The abstract follows.
This article considers whether laws prohibiting same-sex marriage should be found to violate the Establishment Clause. After explaining the nonendorsement principle that the Supreme Court has recognized as central to the clause, the article discusses the limited case law and commentary that explicitly address the constitutionality of same-sex marriage prohibitions under the Establishment Clause. It then examines the various reasons that opponents of same-sex marriage have offered in support of a ban and concludes that those reasons provide strikingly little justification for laws banning same-sex marriage.
A quick announcement for a wonderful looking conference to be held at Harvard Law School on June 7-8, The Changing Faces of Religion and Secularity, organized by the Universidad de Navarra in Spain. The program is international in scope and includes some terrific speakers — Mary Ann Glendon, Jean Bethke Elshtain, and Russell Hittinger, among many others. CLR Director Mark Movsesian will be presenting his paper, Crosses and Culture: State-Sponsored Religious Displays in the United States and Europe.
The following style of argument has on occasion found favor with courts. The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause. And it appears to violate the Establishment Clause when it accommodates a religious group or organization — whether on equal terms with non-religious groups or not. For example, in the Second Circuit’s Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: “In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists. It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause.” Not only endorsement, but a “strong basis” for “concern” that there is endorsement — that is, the appearance of an endorsement — is constitutionally relevant. I have not been able to locate the phrase, “appearance of endorsement” in Justice O’Connor’s statements of her test, though I did find that precise language in Justice Souter’s concurrence in Capitol Square Review and Advisory Bd. v. Pinette.
I think the argument is utterly bogus. But I feel that way about many Establishment Clause standards and arguments. What makes this one particularly — uniquely — wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.