I would prefer to see a Supreme Court opinion striking down bans on same-sex marriage based on a due process fundamental right to marry analysis or on the argument that gays and lesbians are a suspect or quasi suspect class or some mixture of the two. If the Court does decide to resolve this issue under rational basis review, the results need not be as dire as Michael suggests -- although a lot depends on how the opinion is written.
I'm not sure that the polity would read an opinion to be condemning religious beliefs about homosexuality if the Court stated, for example, that there are no rational secular reasons for prohibiting same-sex couples from marrying and that while people have sincere deeply felt religious beliefs about this issue, such exclusively religious beliefs cannot justify the rationality of a law for constitutional purposes. Given that the Court accepts idiosyncratic religious beliefs as religious for constitutional purposes, all laws could be justified as rational if religious beliefs in the law's substance was enough to rationalize it. I think many people understand that we do not protect religious liberty because we agree with the beliefs and practices we are protecting or that we think those beliefs are true, or good, or rational. We protect religious liberty because we value the liberty to believe and practice one's faith as one chooses -- without regard to whether the majority agrees with the minority's faith. And the Court could write a rational basis opinion that does not detract from this understanding. But the cultural impact of the opinion depends a lot, of course, on what the opinion says. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Michael Worley <mwor...@byulaw.net> Sent: Sunday, May 3, 2015 9:20 PM To: Law & Religion issues for Law Academics Subject: Re: Religious organizations, tax-exempt status and same-sex marriage Marty, Sorry to pick hairs, but I'm curious. You think it is "easy" for the Court "to say that the denial of SSM does not satisfy rational basis review." You also said to Alan that you do not believe "that religious beliefs opposing same-sex sexual relationships are purely an irrational bias." It seems to me hard, if not impossible to argue both that laws prohibiting same-sex marriage are not rational and for that to not impact our culture. This cultural impact, to me, will imply "that religious beliefs opposing same-sex sexual relationships are purely an irrational bias." I simply don't trust the state of public discourse enough for people to distinguish between rational basis review with a bite and religious rationality. So I ask: 1) Do you support a decision that man-woman marriage laws fail rational basis review? (This isn't a gotcha question; I just think it is important to start at the basic level either way) 2) If the court rules that man-woman marriage laws fail rational basis review, will that convey permission for citizens to labal those who continue to support man-woman marriage laws as irrational, or at least, "insensitivity caused by simple want of careful, rational reflection" as ruled in Garrett. 3) If, contrary to your hopes, one or more of the following become a part of our culture, will that hurt religious people and institutions? A) that religious beliefs are "simply" a "product of time and culture", B)"are purely an irrational bias," or C) are dependent upon, or necessarily reflect, "bigotry" (or "animus," for that matter) D) "that conservative Christian teachings about sex have the same place in the church that former teachings about race did." 4) Assuming opposition to same-sex marriage is seen as irrational, is there any reason universities should be allowed to discriminate against same-sex couples? I ask these questions because in my mind, a ruling based on "no rational basis" impacts the public square in such a way that makes any university that holds the religious values we've mentioned (and at least 10 or 20 will continue to do so) up for attack? I feel like you see a distinction I'm missing here, or oppose a ruling based on the lack of rational basis. I look forward to your and any others responses. Thanks, Michael On Fri, May 1, 2015 at 8:11 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Alan: Thank you for that very thoughtful and candid reply. I apologize if my wording in response to Eugene's post was infelicitous, or insensitive, in any way. I was trying to be very careful not to suggest that all religious objectors would "change their minds." I agree with you that some will not. And I certainly did not write, and did not mean to suggest in the slightest, any of the following: -- that religious beliefs are "simply" a "product of time and culture" -- "that religious beliefs opposing same-sex sexual relationships are purely an irrational bias" -- that religious beliefs on this question are dependent upon, or necessarily reflect, "bigotry" (or "animus," for that matter) -- that anyone "misunderstands" their own religion or -- that conservative Christian teachings about sex have the same place in the church that former teachings about race did. Indeed, I don't believe any of those things to be true, and so I surely would not argue for them or intend to suggest them in this thread. Of course, as your response acknowledges, religious beliefs of many individuals (not all)--and of many religious institutions--do change as a result of shifts in social practices, which tend to be followed by shifts in understandings of human nature. These shifts sometimes occur even with respect to theological commitments that have long been viewed as based in transcendent truth. The examples are legion--within my faith, the Catholic Church, the LDS, etc.; I know I don't need to belabor the point. The Notre Dame video, making great efforts to attract LGBT students, is merely the latest example. But it's of a piece with many, many other, similar trends. Even so, I agree with you that after a rapid change in the views of most people, some portion of the population is likely to maintain its religiously grounded views about homosexuality. (Your 20% seems like a reasonable guess about that number.) The point I was trying to make, however, was not about the cause, or the rate, of changes in individuals' religious beliefs. What I wrote was that, if and when antidiscrimination laws are extended more broadly to sexual orientation, "very few" of today's religious organizations will be "legally and socially marginalized" because "they will have voluntarily ended their discriminatory practices." Indeed, as I emphasized in later posts, even today there are very few such organizations that openly engage in such discriminatory practices (other than as to ministerial positions). And that number will only diminish--probably to a small handful--by the time Congress gets around to amending Title VII and Title IX to cover sexual orientation. I hope that better explains what I was getting at. I certainly did not mean to disparage or trivialize anyone's sincerely held religious beliefs. Best, Marty On Thu, Apr 30, 2015 at 9:53 PM, Alan Hurst <alan.hu...@aya.yale.edu<mailto:alan.hu...@aya.yale.edu>> wrote: Thanks to Marty and everyone else for the discussion here. I'm finding it very informative. I wanted to respond briefly, however, to Marty's wager below: And Eugene, I'd be willing to wager that very few of today's conservative Christians' organizations will be "legally and socially marginalized" at that point, because by then they, too, will have voluntarily ended their discriminatory practices. I have two quick thoughts about this. First, I think you should consider a bit more carefully how that argument sounds to someone whose religious beliefs include the rejection of same-sex sexual relationships as immoral. "You shouldn't worry about the long run because your religions will just change their minds on this issue anyway" suggests at least one of the following two ideas: --that religious beliefs are simply a product of time and culture, with no basis in any transcendent truth and no capacity to resist broader cultural movements. --that religious beliefs opposing same-sex sexual relationships are purely an irrational bias and, like religious opposition to interracial marriage, will gradually vanish as gay marriage becomes commonplace and believers' aversion to gay relationships is worn down by familiarity. You may in fact believe these two ideas, and although I don't, I'm certainly not going to change your mind here. But I do hope you'll consider for a moment how they sound to believers who disagree with you. In essence, when you say, "Your religion will change on this issue," you're saying either, "The beliefs you've built your life on have no basis in reality" or "Your bigotry has led you to misunderstand your own religion." True or false, these two thoughts are quite the opposite of comforting to a believer who worries about this issue. They do as much as anything to persuade believers that people like you really don't understand religion and really are out to get them. Second, if I were a betting man, I'd take your wager. Partially I'd take it because, well, the analogy between religious racism and religious heteronormativity is at most superficially accurate. Conservative Christian teachings about sex just have a much different place in the church than American Christians' teachings about race ever did--theologically, functionally, socially, historically, etc. These things are simply not the same. Douthat wrote briefly (but I think accurately) about this here: http://www.nytimes.com/2015/04/05/opinion/sunday/rosss-douthat-interview-with-a-christian.html?_r=0 And partially I'd take your wager because religion has always been an international phenomenon, and like everything else it's getting to be more so. The heart of Christianity is moving from Europe and North America to Latin America, Africa, and Asia. Within a few decades, China may be home to more Christians than any other country. American Catholicism has never been centrally important to the Catholic church, and even we Mormons now have more members outside the U.S. than inside. Unless the gay marriage movement catches on in a lot of places where it's not yet had much traction, I think these Christians abroad are going to give some ballast to American Christian opposition to gay marriage. To some extent it's already happened--see, for example, the ties springing up between conservative American Episcopalians and African Anglicans. My prediction? I think religious opposition to gay marriage is going to be like religious opposition to premarital sex. The polls will move more rapidly than anyone once thought possible, and in a decade or two only 20% of Americans will think gay marriage is immoral. And then the graph will bottom out, and you're going to have about 20% of Americans still thinking that for a long time. So, no, I don't think these issues are going away. Best, Alan (My apologies, but I took an hour that I didn't really have to write this, and I don't know when I'll be able to post again. But Marty, if you respond, I promise I'll get back to you eventually.) _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley J.D., Brigham Young University
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
