Gay Marriage and Religious Freedom -- Why the emphasis on male homosexuality?

An excellent article published in the New York Post on 20 April 2009 correctly observes that the vast majority of homophobes are obsessed not with lesbian sex, but with sex between men. In fact, many of the hardest-core homophobes secretly fantasize about lesbian sex; this is something that is all too well known to purveyors of heterosexual pornography, who take full advantage of the male preoccupation with the sexual activity of lesbians, and who crank out countless heterosexual porno movies depicting two or more women “getting it on” with each other.

As a group, heterosexual women tend to be much more accepting of both male and female homosexuality than are men. Some women actually enjoy watching gay men kiss and cuddle.

It is the image of two men having sex that turns so many otherwise reasonable men (in particular) into irrational bigots, who parlay their hatred of this image into political capital and who then seek to hide their hatred of such imagery behind laws prohibiting gay persons from marrying. Not long ago, such laws also prohibited gay persons from having sex, even in the privacy of their own bedrooms. No less an entity than the US Supreme Court fell victim to this mode of regressive analysis when it handed down the obscene decision of Bowers v. Hardwick, 478 U.S. 186 (1986). The Court veered into flat-out nastiness when it ignored the due process challenge to the Georgia “sodomy” statute filed by a heterosexual couple, and concentrated only on the due process challenge filed by Michael Hardwick – the gay man who was arrested (but ultimately not prosecuted) when the police, admitted into his home in error by a houseguest, entered his bedroom and found him having consensual oral sex with another man. The Court went so far as to state that it expressed no opinion as to the constitutionality of the Georgia sodomy statute as applied to married couples, and then focused, obsessively, on this statute as applied to gay men. (The majority opinion crudely declared that “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”) The Court repeatedly referred to “homosexual sodomy” (not gay sex, as later opinions have framed this issue).

In 2003, the US Supreme Court, realizing that it had perpetrated a gross and continuing injustice against gay persons, expressly and bluntly overruled Bowers, in Lawrence v. Texas, 539 U.S. 558 (2003). The US Supreme Court almost never directly overrules itself, usually preferring to ignore cases with which it no longer agrees, and opening up new lines of constitutional analysis that undermine the analysis undergirding the old decision, sub silentio. Back in 1996, the Court handed down Romer v. Evans, 517 U.S. 620 (1996), in which decision the court invoked an equal protection analysis to strike down an amendment to the Colorado state constitution (known as “Amendment 2”) that effectively robbed gay persons in that state of the right to petition their legislature, at all levels of state government, for protection from discrimination, in both the public and private sectors. Many constitutional scholars believed that the Romer Court had intentionally and carefully undermined Bowers by 1) invoking the Equal Protection Clause of the Fourteenth Amendment to strike down Amendment 2, thereby completely ignoring the due process analysis it had used in Bowers to mock and belittle Michael Hardwick's assertion of a right to sexual privacy, and by 2) failing to so much as even mention Bowers, despite the fact that Bowers was the most prominent case dealing with the rights of gay Americans.

The lower courts noted that the US Supreme Court had effectively crippled Bowers – the US Court of Appeals for the Seventh Circuit, in Nabozny v. Podlesny, 92 F.3d 446 (1996), noted that “Of course Bowers will soon be eclipsed in the area of equal protection by the Supreme Court’s holding in Romer v. Evans... Romer, which was decided following the oral argument in this case, struck down on equal protection grounds a Colorado constitutional amendment that discriminated against homosexuals. Although Romer bolsters our analysis in this case to some extent, we do not rely on it.”

When the Court handed down Lawrence, it employed entirely different language and an entirely different tone, noting at the outset that “[this] statement [about “homosexual sodomy”], we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”

The Lawrence Court then went on to overrule Bowers, bluntly declaring that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

When this statement was read out by Associate Justice Kennedy (who delivered the majority opinion from the bench), many gay spectators, some of whom had slept outside the US Supreme Court building all night so as to improve their chances of being seated, silently but openly wept...

The Lawrence majority conceded that it could have decided Lawrence by relying entirely on an equal protection analysis, but concluded that this would not have gone far enough. They wanted to ensure that anti-gay sex statutes would not be redrafted in such a manner as to apply to both gay and heterosexual couples, which would have preserved them from facial equal protection challenges and which would have made it necessary for gay plaintiffs to advance a "disparate impact" argument. This is indeed startling, in that the doctrine of avoidance counsels all Article III courts to decide cases before them on the narrowest possible grounds, and not to reach constitutional issues that do not have to be reached in order to resolve the instant case. This is closely related to the concept of measured constitutional steps; courts of equity generally decide cases as narrowly as possible, and defer questions of constitutional interpretation only to those cases that absolutely require such adjudication.

Associate Justice Sandra Day O'Connor wrote a separate concurrence in Lawrence, arguing that an equal protection analysis would have been better suited to Lawrence; however, five of her colleagues insisted on striking the Texas sodomy statute (and, by extension, all other such statutes nationwide) by invoking the Due Process Clause of the Fourteenth Amendment. O'Connor noted that evenhanded enforcement of a facially neutral sodomy statute would not long be tolerated by a democratic society (heterosexual men and women would not take kindly to being arrested and convicted for engaging in oral sex), and also implied that uneven enforcement of a facially neutral sodomy statute would permit gay plaintiffs to advance a disparate impact analysis; however, her colleagues on the bench were determined to drive a stake through the heart of all such statutes.

Judges sitting on the lower courts took note not just of the fact that Bowers had been overruled, but also of the tone employed by the US Supreme Court in Lawrence. The US Court of Appeals for the Seventh Circuit – considered by legal observers to be a conservative and scholarly appellate court – upheld the incest convictions of a brother and sister who had married each other (see Muth v. Frank, 412 F.3d 808 (7th Cir. 2005)), declining to extend the reach of Lawrence to cover and protect consensual adult incest (thereby dismissing Associate Justice Antonin Scalia’s rabid and embittered dissent in Lawrence, in which dissent Scalia had predicted that laws against incest would be vulnerable to constitutional attack). Although he agreed with his two colleagues on the three-judge panel that handed down Muth, Judge Evans refused to sign their opinion, stating that:

“As I read the majority opinion, I sense a certain degree of unease, even disdain, for the majority opinion in Lawrence. The citations to Justice Scalia’s dissent in Lawrence, I submit, are unnecessary. I also don’t care for the repetitive (seven mentions in Part B) paraphrasings of the Texas law (which prohibited “engaging in consensual sexual activity with a person of the same sex”) as a law prohibiting “homosexual sodomy.” I realize that term is used twice in the majority opinion in Lawrence, but I think its use is ill-advised and outdated as well. As I see it, the term “homosexual sodomy” is pejorative. It should be scrubbed from court decisions in the future. For these reasons, I join the judgment of the court without embracing certain aspects of the majority opinion.”

Again and again, we see that objections to gay sex (and gay marriage) almost invariably focus on gay men, as opposed to lesbians (I do not trivialize the abuse and cruelty heaped on lesbians by making this observation; in the 1990s, a lesbian woman named Sharon Bottoms lost custody of her son when a Virginia state court judge declared her to be an "unconvicted felon"). It is the thought of two men having sex that disturbs so many heterosexual men; more specifically, it is the thought of one man penetrating another that drives these people crazy.

The New York Post article touches upon this relatively one-sided hatred, but does not adequately explain it.

The bottom line is that we still live in a society in which gender roles and stereotypes are enforced, sometimes violently. In the eyes of homophobic heterosexual men, gay men are “sex traitors” who betray the masculine ideal by doing the one thing that men are never “supposed” to do – that is, letting other men penetrate them.

That is the rub. Sadly, this form of gender stereotyping exists even in the gay male community; I know several gay men who refuse to “bottom” on the grounds that this is “the woman’s position”. This is, in and of itself, a form of homophobia, internalized by those who express it. Such men also rob themselves of sexual experiences that are without question extremely pleasurable to the majority of gay men...

The New York Post article was eloquent and succinct when it declared that Christians will be required to surrender absolutely nothing once gay marriage becomes legal nationwide. Christians will remain free to teach their children that gay sex is evil, should they so desire. Churches will remain free to refuse to marry gay couples should such marriages fall afoul of their religious tenets. Other churches do recognize gay marriage, and will doubtless officiate at many millions of gay marriage ceremonies in years to come. Nobody will be prosecuted for preaching that gay people are evil and depraved. The US Supreme Court, in Brandenburg v. Ohio, 395 U.S. 444 (1969) made it very clear that even advocacy to break the law – even advocacy of terrorism – is protected by the First Amendment. Only when such advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” does it no longer enjoy First Amendment protection.

But back to the article – I am truly amazed that the New York Post (which has a reputation for rabid homophobia) published this piece. Clearly, the message is getting through. Maggie Gallagher has not had it easy as of late – her disastrous Presidency of the “National Organization for Marriage” has collapsed in shambles amidst snickers and guffaws of laughter over the comical video “The Gathering Storm”. Instead of being taken seriously by those to whom this video was targeted, it has spawned countless parodies. It is, in and of itself, a parody of the fears of those who oppose gay marriage – although it certainly was not intended to be a parody! At the cost of about $1.5 million, this video ranks as one of the most amusing – and abject – failures of propaganda ever launched. Joseph Goebbels would have been better able to stir up fear and resentment than were the brain-dead actors who participated in this mockery.

Five or 10 years from now, when gay marriage is legal throughout the nation, I believe that these actors will look back on their “contribution” to the discourse, and literally hang their heads in shame.

PHILIP CHANDLER

California Sees the Light

Social and cultural conservatives, spearheaded by the religious right, are frightened, furious and disgusted by the May 15 decision of the California Supreme Court, in which decision this court held that the California state constitution prohibits the denial of marriage licenses to gay couples (in re Marriage Cases, S147999). Gay and lesbian Americans, on the other hand, met this long-anticipated decision with delight, jubilation, and glee, leading one conservative to compare their reaction to “Visigoths dancing in the ruins of Rome” – a patently offensive comparison in the eyes of most gay people and many heterosexuals, not all of whom oppose gay marriage.

Organizations such as the “American Family Association” (AFA), “Focus on the Family,” (FOTF), and the “Family Research Council” (FRC) applaud efforts to amend the California state constitution to codify the ban on gay marriage at the state constitutional level; a measure to do this may appear on the ballot in November, and polls initially indicated that the outcome could result in this victory for marriage equality being short-lived. However, the analysis undergirding this decision cannot be annulled by such an amendment; such a measure may invalidate the court’s holding, but cannot invalidate the court’s reasoning. This is important, because (as will be discussed) the California Supreme Court became perhaps the second state high court in the nation to conclude that gay Americans constitute a “suspect class” for the purposes of state equal protection analysis. Days later, the US Court of Appeals for the Ninth Circuit became the first federal appeals court in the nation to conclude that gay Americans may constitute a “suspect class” for the purpose of US Constitutional equal protection analysis; a three-judge panel of this Court decided, unanimously, that the military’s categorical ban on gay men and lesbians serving in the Armed Forces cannot be sustained in the light of the US Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) (in which decision the Court struck down all state “sodomy” statutes as applied to gay sex acts performed in private between consenting adults for non-commercial purposes, holding that these statutes violated the Constitution’s guarantees of substantive fairness under the Due Process Clause). The latter development may well be far more significant than the California gay marriage development, for reasons that will be discussed in a later essay. Sufficeth to state that this panel of the Ninth Circuit meticulously analyzed what the US Supreme Court actually did in Lawrence as opposed to what the Court said, to arrive at the conclusion that the US Supreme Court employed a form of heightened scrutiny in Lawrence (see Witt v. Dept. of the Air Force, No. 06-35644 (May 21,2008)).

(See http://lawprofessors.typepad.com/laborprof_blog/files/witt_v_air_force_0635644.pdf for the actual panel decision).

Some conservatives have expressed (groundless) fears that churches will be forced to recognize gay marriages against their religious tenets. At the outset, it should be noted that no church could ever be required to perform gay marriages. The specter of churches being forced to perform gay marriages against their religious tenets as an argument against the recognition of gay marriage is a classic example of the “straw man” argument. Just as no church in the nation is required to perform marriages of previously divorced people, or of people who are not members of that church, so too will no church ever be forced to perform gay marriages. Conservatives should rest assured that the Free Exercise Clause of the First Amendment ensures that churches are (and will remain) free to determine who they may and may not marry. I know of no gay rights activist (or of any gay person) who wishes to force churches to recognize gay marriage. In fact, one of the principle “talking points” advanced by gay rights activists during the debate about gay marriage stresses the fact that heterosexual marriages may be performed with or without the religious ceremony that so many people love; many couples choose to get married by the appropriate official at City Hall rather than in church, and this will apply to gay marriages too. Anti-discrimination statutes that include sexual orientation as a characteristic that may not be taken into consideration in housing, employment, and access to places of public accommodation almost always include an exception for religious institutions; indeed, such an exception is required in order for these statutes to pass constitutional muster.

What is noteworthy about the majority opinion in the California case (in re Marriage Cases, S147999 (May 2008)) is the degree of research and scholarship that was reflected in this decision. The majority made numerous references to California case law, and clearly researched this issue at considerable length. This was reflected in the opening words of the dissent authored by Justice Baxter, who wrote that “The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case.” Sadly, however, three Justices remained wedded (no pun intended) to the tautological and conclusory reasoning adopted by the state (as well as by the majority in the New York gay marriage case (Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). 7 N.Y.3d 338), in which the state prevailed and the gay plaintiffs lost).

The California decision held that the prohibition of gay marriage violated both the due process and the equal protection guarantees of the state constitution. The case rested entirely on state constitutional law, thereby ensuring that the judgment cannot be appealed to the US Supreme Court (a decision resting entirely on state constitutional analysis may not be reviewed by the US Supreme Court; indeed, a state supreme court decision may only be reviewed by the US Supreme Court to the extent that the state court decision involves US constitutional or statutory adjudication).

The majority opinion made short work of the tired argument that same-sex marriage should not be permitted because same-sex marriage has never been permitted. The majority pointed out that this is not analysis – this is merely a restatement of the issue presented by the plaintiffs. The majority framed the issue not as being whether the state constitution grants a right to “same-sex marriage,” but instead in terms of whether the state constitution granted gay people the right to marry. These are entirely different issues. The majority did not frame marriage in predefined terms as the union of only a man and a woman; it identified marriage as the union of two people who love each other and who wish to enter into the legal and social commitments associated with the institution of marriage, and then asked whether there was any reason that gay couples should not be permitted to enter into this union in the same manner as is currently done by heterosexual couples.

The identification of fundamental rights frequently lies at the heart of due process analysis. In federal constitutional jurisprudence, fundamental rights are often identified as those rights “implicit in the concept of ordered liberty” (see Palko v. Connecticut, 302 U.S. 319 (1937)); they involve principles of justice “rooted in the traditions and conscience of our people” (see Snyder v. Massachusetts, 291 U.S. 97 (1934)); they are rights which are such that “neither liberty nor justice would exist if they were sacrificed” (Palko, supra). The California Supreme Court embarked on a similar analysis of rights recognized as fundamental through interpretation of the California state constitution. However, the California Supreme Court also recognized that while fundamental rights are often rights that have been recognized for lengthy periods of time, historical recognition of such rights is not the only issue considered in their identification. This is somewhat akin to the US Supreme Court’s analysis in Lawrence v. Texas, 539 U.S. 558 (2003) (this decision invalidated all state “sodomy” statutes as applied to sexual conduct between consenting adults in private settings for non-commercial purposes); in Lawrence, the US Supreme Court noted an “emerging awareness” that liberty grants adults a substantial degree of protection in deciding how to conduct their private lives in matters pertaining to sex.

The Lawrence Court made it clear that rights recognized under the Due Process Clause of the Fourteenth Amendment are not limited only to the rights described above, noting that "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (cited from County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)). The California Supreme Court cited from relevant California case law to arrive at the same conclusions as those arrived at by the US Supreme Court in its due process jurisprudence, reaching the same result with respect to the identification and recognition of fundamental rights. The California constitution also contains an explicit privacy clause, which has allowed the state courts to develop due process analysis in a manner analogous to that in which the US Supreme Court has developed due process analysis (a long line of case law rests on this development – see, e.g. Meyer v. Nebraska, 262 U.S. 390 (1923), Skinner v. Oklahoma, 316 U.S. 535 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), Loving v. Virginia, 388 U.S. 1 (1967), and of course Lawrence (supra)). The California Supreme Court framed the issue as one of whether or not gay people should be able to exercise an already recognized fundamental right (the right to marry), rather than whether the court should recognize a new fundamental right to “same-sex marriage.”

In support of this paradigm, the California Supreme Court referred to Perez v. Sharp, 32 Cal.2d 711 (1948), in which decision this court invalidated the California “anti-miscegenation” statute, becoming the first state in the nation to invalidate such a statute (the US Supreme Court invalidated all such statutes 19 years later when it handed down Loving v. Virginia, 388 U.S. 1 (1967)). Perez was handed down by a deeply divided court, as was the case with respect to in re Marriage Cases, supra (the case under discussion). Just as the right to marry should not depend on an individual’s race, the court argued that it should not depend on an individual’s sexual orientation. The state countered with the argument that “domestic partnerships” already provided gay couples who entered into these relationships all of the substantive rights of marriage – however, the court correctly noted that the reservation of “the historic designation of ‘marriage’” exclusively for opposite-sex couples posed a serious risk of denying to gay couples in substantively identical relationships equal dignity and equal respect.

The court then turned to the assertion that the existing marriage statute was invalid under a state equal protection analysis. Whereas the US Supreme Court recognizes three levels of judicial review in cases implicating infringements of the Equal Protection Clause of the Fourteenth Amendment, the California state courts recognize only two levels of judicial review in cases implicating infringements of the California constitution’s equal protection clause.

Most California statutes challenged under the equal protection guarantee are reviewed under the rational basis standard, which is recognized by both state and federal courts; under this deferential standard of review, the burden falls on the plaintiff to establish that the challenged statute furthers the promotion of absolutely no legitimate state interest, or that there is no rational relationship between the putative state interest and the classification drawn by the challenged statute (most, but not all, statutes will survive scrutiny under this standard of review – notable exceptions include Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); and United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973)).

Statutes that draw classifications on the basis of characteristics such as race or sex are reviewed under “strict scrutiny” by the California state courts; statutes that draw classifications on the basis of race are reviewed under “strict scrutiny” by the US Supreme Court (and other federal courts), whereas statutes that draw classifications on the basis of sex are reviewed under “quasi-strict scrutiny” by the US Supreme Court (and other federal courts) (see United States v. Virginia, 518 U.S. 515 (1996); Frontiero v. Richardson, 411 U.S. 677 (1973)). “Strict scrutiny” is a much more demanding standard of review under both state and federal constitutional jurisprudence; in federal equal protection jurisprudence, a statute will only survive “strict scrutiny” if it is shown to promote a “compelling” state interest, and if it is also shown that the differential treatment promotes that interest in the “least restrictive” manner possible with respect to the right infringed; the statute must sweep no more broadly than is absolutely necessary (this is referred to as “narrow tailoring.”) Federal case law on point includes Korematsu v. United States, 323 U.S. 214 (1944), McCleskey v. Kemp, 481 U.S. 279 (1987), and Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978). Under California equal protection constitutional adjudication, a statute will only survive “strict scrutiny” if it is shown to promote a “compelling” state interest, and if it is also shown that the differential treatment is both reasonably related to and “necessary” to promote the interest in question. Strict scrutiny is only applicable, under both federal and state constitutional adjudication, if the statute in question adversely impacts members of a “suspect class” or if the statute in question adversely impacts the exercise of a “fundamental” right.

The California Supreme Court was faced with an issue of first impression under California law – whether gay men and lesbians constitute a “suspect class” for the purposes of state equal protection analysis.

Members of the group in question must satisfy several of a number of criteria in order to be identified as members of a “suspect class” under both federal and state constitutional analysis. These criteria include (but are not limited to) a history of past persecution; persecution based on the presence of an “immutable” characteristic possessed by members of that class; persecution based on a characteristic that does not relate to the ability of members of that group to contribute to society; relative political powerlessness; and small size of the group relative to larger society. Other language that has been noted includes membership in a “discrete and insular minority” (see United States v.Carolene Products Co., 304 U.S. 144 (1938) (Footnote 4). The state supreme court held that gay men and lesbians are a “suspect class” for the purposes of equal protection analysis, and that classifications on the basis of sexual orientation are thus “suspect,” requiring that any statutes that classify on this basis be subject to “strict scrutiny.”

It is important to note that not all of these criteria have to be satisfied in order for the group in question to be accorded “suspect class” status under both federal and state equal protection jurisprudence. The California Supreme Court noted that religion is certainly not an “immutable” characteristic, yet all religious groups are “suspect classes” under federal and state constitutional jurisprudence. The majority held that gay men and lesbians constitute a “suspect class” under state constitutional analysis. In arriving at this determination, the majority noted that sexual orientation is, at the very least, highly resistant to change; the court also noted that the characteristic in question is one so central to the identification of members of the class in question that they should not have to change this characteristic in order to receive the benefits of this standard of review.

In holding that gay people constitute a “suspect class,” California became perhaps the second state high court to in the land to make this determination. The Hawaii Supreme Court made a similar determination in Baer v. Miike, 910 P.2d 112 (Hawaii 1996) – in this case, the Court upheld the denial of marriage licenses to gay couples after the voters amended the Hawaii constitution to codify marriage, at the state constitutional level, as being a union of one man and one woman only. It is important to note that gay people remain a “suspect class” in the eyes of the state courts of Hawaii, notwithstanding the state constitutional amendment that forced the trail court to deny marriage licenses to gay couples, and that forced the state supreme court to uphold the denial of marriage licenses to gay couples. This has important ramifications in that any state statute in Hawaii that classifies on the basis of sexual orientation, to the detriment of gay people, must be subjected to “strict scrutiny.”

The hard right is furious with the California Supreme Court for its decision in this landmark case, and is mounting a drive to amend the state constitution to prohibit the recognition of same-sex marriages in November of this year. It is by no means clear that this initiative will pass. Should the court refuse to stay its decision, gay couples will start marrying three weeks from now. It is one thing for voters to pass an anti-gay marriage amendment that has no direct impact on gay and lesbian citizens who have never been permitted to marry, but an entirely different matter to vote to dissolve existing marriages.

Most Californians know people who are gay; while the hard right will certainly do everything in its considerable power to pass such an amendment, it is not clear whether the citizens, confronted with gay couples who have married and who have been married for five months, will vote to dissolve those marriages. Clearly, the future of this decision lies in the hands of gay rights activists and ordinary gay people in California, who should fight to preserve this historic victory and to ensure that California remains the second state to recognize gay marriage in full.

Two down, with 48 to go.


PHILIP CHANDLER