Posted on by Mark Movsesian

The Wider Implications of the Clergy Sex-Abuse Crisis

Baylor University historian Philip Jenkins has written a provocative essay on the wider implications of the clergy sex abuse crisis for American Catholicism. It’s not just that victims have suffered, that clergy have gone to jail, that the Church has paid billions of dollars in lawsuits, that charitable work has been curtailed, and that several dioceses have declared bankruptcy. The scandal has also diminished the Church’s voice on debates about law and religion. Where once people would have paid respect to the Church’s views, even if they disagreed with them, the crisis has so weakened the Church’s moral authority that people dismiss the institution and its arguments entirely. For example, in Jenkins’s view, the ineffectiveness of the Church’s voice has greatly influenced the debate on same-sex marriage:

One great “might have been” involves same-sex marriage. In light of present realities, it is hard to recall just how fringe and even bizarre an issue this seemed just a decade ago, and a large section of the American public is Read more

Posted on by Michael Helfand

Levin on Judaism and the Same-Sex Marriage Debate

While procrastinating about grading, I scrolled through today’s twitter feed (yes,  you too can follow my not-particularly exciting twitter feed) and found a extremely thoughtful op-ed by Hillel Y. Levin (U. Georgia Law School) in Tablet Magazine titled “Stay Out of It.”   In the piece, Levin criticizes recent statements from prominent Orthodox Jewish institutions opposing same-sex marriage.  Much of Levin’s criticism tracks some of the larger debates over whether there is a role for religious argumentation in the public sphere – debates frequently associated with John Rawls’s seminal article “The Idea of Public Reason Revisited.”

But Levin also presses on another reason why Orthodox Jews should be particularly sympathetic to same-sex marriage, which emphasizes the minority status of both the Jewish and LGBT communities.  Here’s an excerpt I found particularly noteworthy:

Unlike our Christian friends and neighbors, Jews grow up with our minority status deeply ingrained and without the instinctive expectation that our religious traditions and beliefs will naturally be reflected in the broader law and culture. As a minority within a minority, Orthodox Jews recognize that we reap the benefits of pluralism, tolerance, and accommodation. After all, if religious beliefs in this country were to orient secular law, we would find ourselves deeply disappointed and possibly threatened, just as we historically have in every other diaspora country.

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Simson on Same-Sex Marriage and the Establishment Clause

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.

Read more

Posted on by Mark Movsesian

The President, Faith, and Same-Sex Marriage

An interesting point that may be overlooked in President Obama’s announcement yesterday that he supports same-sex marriage. According to the President, his faith as a Christian helped lead him to this position. Referring to his wife, First Lady Michelle Obama, he said:

This is something that, you know, we’ve talked about over the years and she, you know, she feels the same way, she feels the same way that I do. And that is that, in the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others.

But, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated. And I think that’s what we try to impart to our kids and that’s what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I’ll be as a as a dad and a husband and hopefully the better I’ll be as president.

Of course, as the President suggested, not everyone agrees with his assessment of what Christianity requires in this respect — the US Conference of Catholic Bishops, for example. Still, in stating that his religious faith helped determine his position, the President is well within the American tradition of political leaders who explain their policies in religious terms.

Posted on by Marc O. DeGirolami

Ninth Circuit Strikes Down Proposition 8

Today, in Perry v. Brown, the Ninth Circuit affirmed the district court’s determination that California Proposition 8 — in which the people of California had declared marriage to be the union of a man and a woman, which in turn reversed the judgment of the California Supreme Court — violates the Due Process and Equal Protection Clauses of the U.S. Constitution.  In a 2-1 decision, the court, in an opinion authored by Judge Stephen Reinhardt, held that none of the reasons offered by the proponents of Proposition 8 were legitimate under the most deferential standard of review that the court exercises in these kinds of cases — rational basis review.  Throughout the decision, the court repeatedly emphasized that this case was about taking away a right which had already been granted (by the California Supreme Court), rather than extending a right which had not yet been granted.  The dissenting judge disagreed with the court’s conclusions with respect to the rationality of the reasons offered in support of Proposition 8.

Unlike in the district court decision, there is little in this decision which overtly concerns religion.  The court did reject the claim that Proposition 8 protects religious liberty by making it less likely that religious institutions would be penalized for refusing to provide services to same-sex couples.

But the more interesting connections are indirect.  The court held that taking away the right of gay marriage (after it had been provided by the California Supreme Court) bore no rational relationship to the aims of childrearing, responsible procreation, and the promotion of a stable family structure.  It also held that the aim of preserving a tradition — including one based on “sincerely held private belief” — is not rationally related to a legitimate state interest.  Here’s a portion of the court’s opinion at 71-72:

Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.

Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’  Romer, 517 U.S. at 634.  We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.

UPDATE: Over at the Volokh conspiracy, Orin Kerr makes a very interesting point that, at least on my reading, the Ninth Circuit did not consider in its panel opinion.  Kerr writes that at least a part of the reason that the people of California might have voted for Proposition 8 was to register — “symbolically,” as the Ninth Circuit says — their disapproval of the California Supreme Court’s decision to extend marriage to homosexual couples.  The point was to issue a rebuke to the California Court.  One can, of course, agree or disagree with that symbolic popular expression.  But to my mind, it is difficult to conclude that a symbolic expression  with that motivation does not satisfy the rational basis standard of review.

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Religious Exceptions and the NJ “Marriage Equality and Religious Exemption Act”

The New Jersey Star-Ledger reports that the NJ State Assembly has enough votes to pass a proposed same-sex marriage bill. The Assembly will officially vote on the bill on February 16, three days after the Senate takes up the bill. Governor Chris Christie has repeatedly promised to veto any same-sex marriage legislation and has instead urged a referendum on the issue.

As I noted in a previous post, exceptions for religious groups have been a prerequisite to the passing of same-sex marriage legislation in other states, most notably New Hampshire, Vermont and New York. These exceptions have focused on two areas. First, they allow clergy to refuse to solemnize same-sex marriages and prevent both state action (i.e. penalizing or withholding benefits) and individual causes of action resulting from such refusal. Second, these exceptions allow a religious organization, like Catholic Charities, to “tak[e] … action … calculated … to promote the religious principles for which it is established or maintained.” Arguably, this language would allow a foster care service, run by Catholic Charities, to refuse to place children with same-sex couples, a scenario that has become a kind of litmus test on the strength of religious exceptions to same-sex marriage laws.

With this in mind, it is surprising that there has not been more press coverage about the NJ law’s religious exceptions. Read more

Posted on by Marc O. DeGirolami · 1 Comment

Can a Judge Refuse to Conduct a Gay Marriage?

That is the question that an anonymous New York judge asked the New York Judicial Ethics Committee.  In this judicial ethics opinion, the Committee largely did not answer it, though it did opine that the judge could choose to conduct only those weddings of his relatives and friends.  That would be tantamount, in the Committee’s view, to refusing to conduct marriages “on a facially neutral basis” and the Rules Governing Judicial Conduct do not require a judge to conduct weddings.

Posted on by Mark Movsesian

Slate on Civil Unions Among Opposite-Sex Couples

Slate has an interesting piece this week about Illinois’s new law on civil unions, enacted six months ago. Although Illinois designed civil unions principally to give same-sex couples the benefits of marriage without the name, the law also makes civil unions available to opposite-sex couples. And, in fact, about 7.5% of civil-union licences have gone to opposite-sex couples — though the total number of civil-union licenses itself is very small, only about 2000. Slate interviews some of the opposite-sex civilly-united couples and finds their reasons for selecting civil unions mostly have to do with objections to the traditionalism of marriage, including its religious connotations, and solidarity with gays and lesbians. Slate thinks the interest opposite-sex couples have shown in civil unions may further the deconstruction of marriage in America. Given how low the numbers are, I’m not sure. Anyway, worth reading. (H/T: Mirror of Justice).

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The NY Times on Catholic Charities and Same-Sex Marriage

A recent article in the NY Times reports on the effect of Illinois’ same-sex union law on Catholic Charities’ foster-care placement services.  In particular, the article notes that non-discrimination provisions in the law, which require Catholic Charities to treat couples in same-sex unions the same as those in traditional marriages when placing children in foster care, has caused the organization to cease offering foster-care services altogether. Catholic Charities also ceased foster-care services in Massachusetts and Washington DC when same-sex marriage became law those jurisdictions. Focusing on these three jurisdictions, the Times article suggests that these non-discrimination provisions are a form of increasing government religious persecution aimed at excluding religious groups from the public sphere. However, the article ignores those legislatures which have worked hard to protect the freedom of religious organizations through religious exceptions.

New York, New Hampshire and Vermont all allow wide exceptions for religious organizations that oppose same-sex unions. These states provide that religious organizations do not violate non-discrimination provisions when they take actions that are calculated to promote the religious principles for which they are established or maintained. Such exceptions have been integral to the passing of the same-sex marriage laws. In New Hampshire, Governor John Lynch refused to sign a same-sex marriage bill into law until the legislature increased the protections for religious organizations. In New York, the Republican members of the Senate who ultimately provided the necessary votes for same-sex marriage said that they could vote for the bill only because it protected religious organizations. Indeed, far from persecuting religion, these states have extensively debated how to balance the rights of these religious organizations with the policy of non-discrimination.

Posted on by Marc O. DeGirolami

Wardle on Abortion, Same-Sex Marriage, and Education

Another paper by Lynn Wardle (BYU), The Impacts on Education of Legalizing Same-Sex Marriage and Lessons From Abortion Jurisprudence.  The abstract follows.

One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.