Gods & gays: Analyzing the same-sex marriage debate from a religious perspective

Georgetown Law Journal

Volumn 96, Issue 6, 2008, Pages 2103-2141

  Schuman, Ben ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 51249091215     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (213)

1. On June 28, 1969, police in New York City raided the Stonewall Inn in Greenwich Village, a popular gay bar. The raid, considered to be an unprovoked and brutal attack on the homosexual community, sparked three days of riots in Sheridan Square, which are considered the beginning of the gay rights movement. See Police Again Rout 'Village' Youths: Outbreak by 400 Follows a Near-Riot over Raid, N. Y. TIMES, June 30, 1969, at 22.
2. See Employment Non-Discrimination Act of 2007, H.R. 3685, 110th Cong. (1st Sess. 2007); see also David M. Herszenhom, House Approves Broad Protections for Gay Workers, N.Y. TIMES, Nov. 8, 2007, available at http://www.nytinies.com/2007/ll/08/washington/08employ.html. At the time of this writing, the Senate has yet to vote on the bill.
3. News Release, Pew Research Ctr. for the People & the Press, Pew Forum on Religion & Public Life, Republicans Unified, Democrats Split on Gay Marriage: Religious Beliefs Underpin Opposition to Homosexuality 6 (Nov. 18, 2003) [hereinafter Pew Research Ctr.], available at http://pewforum.org/ publications/surveys/religion-homosexuality.pdf.
4. Id.
5. While it is true that there are other forms of discrimination-sexism for example-that find their roots in Christian religious beliefs, see, e.g., 1 Corinthians 14:34-35 ("And if [women] will learn any thing, let them ask their husbands at home: for it is a shame for women to speak in the church."), such forms of discrimination have long since passed out of the realm of religion and into "social tradition." While sexism certainly persists, it is rare to hear a religious figure argue for a biblically mandated subservience of women, whereas homosexuals, engaging in conduct specifically prohibited by the Bible, see infra section II. A, are excoriated weekly from pulpits across America.
6. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (invalidating Virginia's anti-miscegenation statute because "[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies" prohibiting interracial marriages).
7. See U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....").
8. See Michael J. Perry, Christians, the Bible, and Same-Sex Unions: An Argument for Political Self-Restraint, 36 WAKE FOREST L. REV. 449, 449 (2001) ("[S]ome Christians, in deciding whether to disfavor same-sex unions, have good reason to forswear reliance on the biblically grounded belief that homosexual conduct is always immoral."); Dale M. Schowengerdt, Note, Defending Marriage: A Litigation Strategy To Oppose Same-Sex "Marriage," 14 REGENT U. L. REV. 487, 487 (2002) ("Christians may realize that homosexuality violates both Scripture and nature, yet many fear being labeled bigots by judging someone for something they themselves cannot explain."); see also id. at 505 ("Because judges arguably do not give much credence to moral considerations, arguments must have one foot on principle and the other on pragmatism.").
9. Pub. L. No. 104-199, 110 Stat. 2419 (19%) (codified in scattered sections of 1 U.S.C. and 28 U.S.C.). Section 2(a) of the Act reads, in part: "No State... shall be required to give effect to any public act, record, or judicial proceeding of any other State,... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State...." 28 U.S.C. § 1738C (2000).
10. See U.S. CONST. art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.")- The constitutionality of this exception has been debated since DOMA was first introduced in Congress. Compare Patrick J. Horchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 CREIGHTON L. REV. 353, 358-60 (2005) (describing arguments against DOMA's constitutionality as "fanciful"), with Andrew Koppelman, Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional, 83 IOWA L. REV. 1,9, 15-18 (1997) (declaring DOMA unconstitutional because of the "invidious intent" of its choice-of-law provision).
11. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941,961 (Mass. 2003) (holding that denial of marriage licenses to same-sex couples lacked rational basis and violated equal protection principles in the Massachusetts constitution); see also In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 567-68, 572 (Mass. 2004) (clarifying Goodridge and ruling that a proposed bill allowing civil unions rather than same-sex marriage violated equal protection and due process requirements of the state constitution).
12. Varnum v. Brien, No. CV5965, slip op. at 49-50 (Iowa Dist. Ct Polk County Aug. 30, 2007), available at http://www.domawatch.org/cases/iowa/ Vamum%20v.%20Brien/varnum-d-08302007-ia-district.pdf.
13. See Monica Davey, Iowa Permits Same-Sex Marriage, for 4 Hours, Anyway, N. Y. TIMES, Sept. 1, 2007. available at http://www.nytimes.com/2007/09/01/us/01iowa.html. In an interesting turn of events, college students Timothy McQuillan and Sean Fritz were able to obtain a marriage license and secure a minister to officiate the service before the ruling was stayed, making them the only legally recognized same-sex married couple in Iowa. Id.
14. In re Marriage Cases, 43 Cal. 4th 757, 845 (Cal. 2008).
15. See Wyatt Buchanan, Same-Sex Weddings Rescheduled for June 17, S.F. CHRON., May 29, 2008, at A-I, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/05/28/MN5I10VC CS.DTL&tsp=1. Among those Californians eagerly awaiting the effective date is Star Trek actor George Takei, who plans to wed long-time companion Brad Airman. See George Takei, Marriage Equality Comes to California (May 16, 2008), http://www.georgetakei.com/news.asp.
16. Jeremy W. Peters, New York To Back Same-Sex Unions from Elsewhere, N. Y. TIMES, May 29, 2008. at 1, available at http://www.nytimes.com/2008/05/29/nyregion/29marriage.html (quoting the directive by the governor's legal counsel, David Nocenti).
17. Id.
18. Id.
19. Human Rights Campaign, Relationship Recognition in the U.S., http://www.hrc.org/documents/ Relationship_Recognition_Laws_Map.pdf (last visited May 29, 2008).
20. Id. Additionally, until the California Supreme Court decision recognizing same-sex marriage goes into effect, California also offers domestic partnerships. Id.
21. Id.
22. Human Rights Campaign, Statewide Marriage Prohibitions, http://www.hrc.org/documents/ marriage_prohibit_20070919.pdf Oast visited May 29, 2008).
23. Stateline.org, State Policies on Same-Sex Marriage, http://archive. stateline.org/flash-data/ 2007_May_31-CivilUnions/Social_Policy.pdf(last visited Nov. 8, 2007).
24. See Pew Research Ctr., supra note 3, at 1. Unless otherwise specified, when this Note discusses "religion," it is referring primarily to Christianity, which is the dominant religion in the United States. See infra notes 31-32 and accompanying text.
25. Pew Research Ctr., supra note 3, at 1 .
26. See Steven Waldman, A Common Missed Conception: Why Religious People Are Against Gay Marriage, SLATE, Nov. 19, 2003, http://www.slate.com/id/2091413/.
27. See Mark Strasser, Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees, 33 LOY. U. CHI. L.J. 597,605 (2002).
28. See, e.g., Gary Chamberlain, A Religious Argument for Same-Sex Marriage, 2 SEATTLE J. FOR SOC. JUST. 495 (2004); Jeremiah H. Russell, The Religious Liberty Argument for Same-Sex Marriage and Its Effect Upon Legal Recognition, 7 RUTGERS J. L. & RELIGION 4 (2005).
29. Rabbi Devon Lerner, Why We Support Same-Sex Marriage: A Response from Over 450 Clergy, 38 NEW ENG. L. REV. 527, 528 (2004) (quoting the Declaration).
30. Id.
31. BARRY A. KOSMIN, EGON MAYER & ARIELA KEYSAR, GRADUATE CTR. OF THE CITY UNIV. OF N.Y., AMERICAN RELIGIOUS IDENTIFICATION SURVEY 2001, at 12 exh.1 (2001), available at http://www.gc.cuny.edu/faculty/research_studies/aris.pdf.
32. See supra notes 24-25 and accompanying text.
33. Lerner, supra note 29, at 528.
34. Leviticus 20:13 (King James). Similar language appears in Leviticus 18:22 (King James).
35. Leviticus 20:13 (Living Bible), reprinted in Ontario Consultants on Religious Tolerance, Homosexuality in the Hebrew Scriptures: Leviticus 20:13, http://www.religioustolerance.org/hom_bibh3.htm (last visited Nov. 8, 2007). It is beyond the scope of this Note to debate the correct interpretation of these verses. Religious adherents are entitled to their beliefs-it is only the intersection of those beliefs and the law concerning same-sex marriage that is significant for the purposes of this Note.
36. Genesis 2:24 (King James).
37. See, e.g., ROBERT P. GEORGE, "Same-Sex Marriage" and "Moral Neutrality," in THE CLASH OF ORTHODOXIES 75, 77-78 (2001) (suggesting that any sexual acts engaged in outside of the "one-flesh" paradigm are not, by definition, marital acts).
38. Genesis 18:20 (King James).
39. Genesis 19:4-5 (King James).
40. See Douglas Harper, Sodomy, in ONLINE ETYMOLOGY DICTIONARY, http://www.etymonline.com/index.php? term=sodomy (last visited Nov. 8, 2007).
41. See Waldman, supra note 26.
42. Genesis 38:4-10. For a humorous extrapolation of the implications of Onan's story, see Every Sperm Is Sacred, in MONTY PYTHON'S THE MEANING OF LIFE (Universal Pictures 1983) ("Hindu, Taoist, Mormon / spill theirs most anywhere / But God loves those who treat their / semen with more care.").
43. See Waldman, supra note 26.
44. GEORGE, supra note 37, at 85.
45. Waldman, supra note 26 (quoting Ben Witherington III, Was Sodom Into Sodomy?: What the Bible Says About Sodomy, Homosexuality, and Sin, BELIEFNET, http://www.beliefnet.com/story/128/story_12885_2. html).
46. Romans 1:27 (King James).
47. See Ben Witherington III, Was Sodom into Sodomy?: What the Bible Says About Sodomy, Homosexuality, and Sin, BELIEFNET, http://www.beliefnet.com/story/128/story_12885_2.html (last visited Feb. 21, 2008) (referring to 1 Corinthians 6:9-10).
48. See id.
49. See id.
50. Id.
51. Id.
52. Baker v. Nelson, 191 N.W.2d 185,186 (Minn. 1971).
53. Adams v. Howerton, 486 F. Supp. 1119,1123 (C.D. Cal. 1980) (citations omitted).
54. See WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? WHAT WE'VE LEARNED FROM THE EVIDENCE 25 (2006) (describing the religious nature of the Dean opinion and its aftermath).
55. Id. at 25.
56. Id.
57. See id. at 20-31.
58. See id. at 21-22.
59. See id. at 25-26.
60. See id. at 28-29.
61. See id. at 21; see also William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. REV. 1327, 1362-65 (2000).
62. ESKRIDGE & SPEDALE, supra note 54, at 21-22.
63. Id. at 20-21.
64. Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973).
65. Id.
66. Singer v. Hara, 522 P.2d 1187, 1191-92 (Wash. App. 1974).
67. See KATHLEEN A. LAHEY & KEVIN ALDERSON, SAME-SEX MARRIAGE: THE PERSONAL AND THE POLITICAL 16 (2004).
68. DENIS CLIFFORD, FREDERICK HERTZ & EMILY DOSKOW, A LEGAL GUIDE FOR LESBIAN AND GAY COUPLES 19 (14th ed. 2007).
69. Despite this, the definitional argument is still the simplest and easiest-to-digest "sound bite" argument in opposition to same-sex marriage. For this reason, it is the argument put forward by the Republican candidate for the 2008 presidential election. See John McCain, Human Dignity & the Sanctity of Life, http://www.johnmccain.com/Informing/Issues/ 95b18512-d5b6-456e-90a2-12028d71df58.htm (last visited Mar. 8, 2008) ("The family represents the foundation of Western Civilization and civil society and John McCain believes the institution of marriage is a union between one man and one woman. It is only this definition that sufficiently recognizes the vital and unique role played by mothers and fathers in the raising of children, and the role of the family in shaping, stabilizing, and strengthening communities and our nation.") (emphasis added).
70. It is unclear who originally coined the term "no promo homo," but the phrase first appeared in print in a 1996 Washington Post article describing the policy of a Virginia school board's refusal to endorse homosexual student activity. See David M. Skover & Kellye Y. Testy, LesBiGay Identity as Commodity, 90 CAL. L. REV. 223, 226 n.13 (citing Dan Beyers, Montgomery Students Push for Discussion of Gay Issues, WASH. POST, Dec. 8, 1996, at B1).
71. Eskridge, supra note 61, at 1329.
72. See, e.g., PAUL CAMERON, FAMILY RESEARCH INST., SAME SEX MARRIAGE: TIL DEATH DO US PART? (1999), available at http://www.familyresearchinst.org/FRI_EduPamphlet7.html ("The best scientific evidence suggests that putting society's stamp of approval on homosexual partnerships would harm society in general and homosexuals in particular, the very individuals some contend would be helped.") (emphasis added).
73. See, e.g., Alert, Family Research Council, Oppose Special Rights Bill for Homosexual Conduct (Nov. 6, 2007), available at http://www.frc.org/get.cfm7i=AL07K02 (urging readers to contact their Congresspersons regarding the anti-discrimination legislation discussed supra note 2, because it would "grant special rights to transgendered people" and "mainstream homosexuality, bisexuality and transgenderism and provide activists a legal tool for punishing employers who do not approve of these lifestyles").
74. RICHARD A. POSNER, SEX AND REASON 311-13 (1992).
75. Id. at 311.
76. ESKRIDGE & SPEDALE, supra note 54, at 26.
77. Kevin Sack, Albany G.O.P. Grappling With Gay Rights, N. Y. TIMES, Feb. 6,1993, at 23 (quoting Kuhl).
78. ESKRIDGE & SPEDALE, supra note 54, at 27 (citing 142 CONG. REC. 22,451 (1996) (statement of Sen. Coats)).
79. Id. (citing 142 CONG. REC. 16,976, 17,079 (19%) (statement of Rep. Canady)).
80. William N. Eskridge, Jr., The Same-Sex-Marriage Debate and Three Conceptions of Equality, in MARRIAGE AND SAME-SEX UNIONS: A DEBATE 167,179 (Lynn D. Wardle et al. eds., 2003) .
81. See Robin Toner, Welfare Chief Is Hoping To Promote Marriage, N. Y. TIMES, Feb. 19, 2002, at 1 ("[T]he empirical literature is quite clear that, on average, kids who grow up in stable, healthy, married, two-parent households do better than kids who grow up in some other kind of arrangement." (quoting Wade F. Horn, the overseer of the federal welfare program)).
82. EVAN GERSTMANN, SAME-SEX MARRIAGE AND THE CONSTITUTION 35 (2004) ("[I]t is no more an endorsement of homosexuality to grant gays and lesbians marriage licenses than it is to grant them driver's licenses.").
83. Chai R. Feldblum, The Limitations of Liberal Neutrality Arguments in Favour of Same-Sex Marriage, in LEGAL RECOGNITION OF SAME-SEX PARTNERSHIPS: A STUDY OF NATIONAL, EUROPEAN AND INTERNATIONAL LAW 55, 60 (Robert Wintemute & Mads Andenas eds., 2001).
84. Romer v. Evans, 517 U.S. 620, 620-22 (1996).
85. Id. at 626.
86. Id. at 622, 632-35.
87. Id. at 632.
88. Id. at 644 (Scalia, J., dissenting).
89. Id. at 638 (Scalia, J., dissenting).
90. Justice Scalia is referring to Bowers v. Hardwick, 478 U.S. 186, 1% (1986) (upholding the constitutionality of a state anti-sodomy law), which was later overruled by Lawrence v. Texas, 539 U.S. 558, 578 (2003), another 6-3 Kennedy opinion with a scathing dissent from Justice Scalia. See Lawrence, 539 U.S. at 586-605 (Scalia, J., dissenting).
91. Romer, 517 U.S. at 644 (Scalia, J., dissenting).
92. Id. at 652 (Scalia, J., dissenting).
93. See ESKRIDGE & SPEDALE, supra note 54, at 28 (stating that Romer's "antianimus rationale raised red flags about the DOMA enterprise" and prompted lawmakers to reject "intemperate language" in favor of "consequentialist arguments").
94. See id. at 28-29.
95. H.R. REP. NO. 104-664, at 13 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2917. The report also distinguishes Romer on the grounds that "[i]t would be incomprehensible for any court to conclude that traditional marriage laws are (as the Supreme Court concluded regarding Amendment 2) motivated by animus towards homosexuals." Id. at 32, reprinted in 1996 U.S.C.C.A.N. at 2937.
96. Professor Robin West breaks the defense-of-marriage argument down further by categorizing the various types of "promarriage advocates": "neonatural lawyers" see marriage as worthy of celebration because of its traditional nature; "social utilitarians" see marriage as a civil and legal institution, worthy of defense on utilitarian grounds because of the benefits it gives to its participants; and "virtue theorists" see marriage as a particularly virtuous way of life, and therefore worthy of defense for the normative goodness it promotes. See ROBIN WEST, MARRIAGE, SEXUALITY, AND GENDER 57-58 (2007).
97. ESKRIDGE & SPEDALE, supra note 54, at 29.
98. Id. One need look no further than the tabloid magazines at the local supermarket to see that the concept of heterosexual marriage as one of "altruistic space" in which to raise children is almost laughably Utopian. See, e.g., Ken Lee, Attorneys Go to Court; No Changes in Britney Custody, PEOPLE, Feb. 4, 2008, http://www.people.com/ people/article/0,,20175948,00.html (detailing the ongoing custody battle between fallen pop icon Britney Spears and ex-husband Kevin Federline).
99. ESKRIDGE & SPEDALE, supra note 54, at 38 (citing RICK SANTORUM, IT TAKES A FAMILY: CONSERVATISM AND THE COMMON GOOD 27-38 (2005)).
100. Eskridge describes the slippery slope argument as growing from the definitional argument, but in this author's opinion, its fearmongering aspect makes it a better fit as an offshoot of defense-of-marriage. See ESKRIDGE & SPEDALE, supra note 54, at 24 ("[I]f you take step 1 (same-sex marriage), then the same reasoning will lead to step 2 (no age-of-consent rules), step 3 (polygamy), and so forth.").
101. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
102. Adam Nagourney & Sheryl Gay Stolberg, Impolitic, Maybe, but in Character, N.Y. TIMES, Apr. 25,2003 (quoting an April 20,2003 Associated Press interview with Sen. Santorum).
103. John Corvino, The Inclusive Santorum, BETWEEN THE LINES, May 1, 2003, available at http://www.indegayforum.org/ news/show/26727.html (quoting the same interview). Santonun's "man on dog" comment surprised the interviewer so much that he interrupted by saying, "I'm sorry, I didn't think I was going to talk about 'man on dog' with a United States senator; it's sort of freaking me out." Id.
104. Lawrence, 539 U.S. at 590 (Scalia, J., dissenting).
105. See, e.g., Michael G. Myers, Comment, Polygamist Eye for the Monogamist Guy: Homosexual Sodomy... Gay Marriage... Is Polygamy Next?, 42 HOUS. L. REV. 1451, 1475 (2006) (arguing that if courts conclude Lawrence requires recognition of same sex marriage, Lawrence's logic likely applies to polygamy).
106. See, e.g., Hema Chatlani, In Defense of Marriage: Why Same-Sex Marriage Will Not Lead Us Down a Slippery Slope Toward the Legalization of Polygamy, 6 APPALACHIAN J.L. 101 (2006) (polygamy and same-sex marriage are distinguishable); Ruth K. Khalsa, Note, Polygamy as a Red Herring in the Same-Sex Marriage Debate, 54 DUKE L.J. 1665 (2005) (the polygamy issue is irrelevant to same-sex marriage debate).
107. See, e.g., Cheshire Calhoun, Who's Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy, 42 SAN DIEGO L. REV. 1023, 1027 (2005) ("The proper response to same-sex marriage opponents' reductio argument may instead be, 'And indeed, why not also polygamy?'").
108. See, e.g., Elizabeth Larcano, Note, A "Pink" Herring: The Prospect of Polygamy Following the Legalization of Same-Sex Marriage, 38 CONN. L. REV. 1065, 1111 (2006) ("The legalization of polygamy is a legal concern, but not a foregone conclusion."); Dahlia Lithwick, Slippery Slop: The Maddening "Slippery Slope" Argument Against Gay Marriage, SLATE, May 19, 2004, http://www.slate.com/id/ 2100824 ("lust because advocates of polygamy have tried to leverage the Lawrence decision to support their cause doesn't mean there are no differences between the two marginalized groups. And it's not an argument against gay marriage to say, 'I told you those bigamists would use this in court!' It would be stupid for the bigamists not to try.") For more on comparisons between same-sex marriage and polygamy in a Free Exercise context, see infra section IV.A.1.
109. Eugene Volokh, Same-Sex Marriage and Slippery Slopes, 33 HOFSTRA L. REV. 1155, 1156 (2005).
110. Id. at 1198-1201.
111. Justin T. Wilson, Note, Preservationism, or the Elephant in the Room: How Opponents of Same-Sex Marriage Deceive Us into Establishing Religion, 14 DUKE J. GENDER L. & POL'Y 561, 596 (2007) ("Merely claiming a secular purpose does not mean that one exists.").
112. See Stateline.org, supra note 23.
113. See, e.g., MICHAEL J. ZIMMERMAN, THE NATURE OF INTRINSIC VALUE 202 (2001) ("Pleasure in the bad is intrinsically bad.").
114. PEW RESEARCH CTR., WORLD PUBLICS WELCOME GLOBAL TRADE-BUT NOT IMMIGRATION 33, 116 (2007), available at http://pewglobal.org/reports/pdi/258.pdf.
115. See supra note 31 and accompanying text.
116. See Pew Research Ctr., supra note 3, at 1 ("[M]any Americans remain highly critical of homosexuals-and religious belief is a major factor in these attitudes.").
117. See, e.g., Stanley Kurtz, The End of Marriage in Scandinavia, WKLY. STANDARD, Feb. 2, 2004, at 26, available at http://www.weeklystandard.com/Content/Public/Articles/000/ 000/003/660zypwj.asp ("A majority of children in Sweden and Norway are bom out of wedlock. Sixty percent of first-bom children in Denmark have unmarried parents. Not coincidentally, these countries have had something close to full gay marriage for a decade or more."). Kurtz directly challenges the research and conclusions of Eskridge and Spedale, but is unable to draw a causal relationship between Scandinavia's statistical increase in the number of children born out of wedlock and the legalization of same-sex marriage. Kurtz simply points out the correlation between the two and then jumps to the conclusion that the one must cause the other. Id. Republicans in Congress have adopted Kurtz's reasoning and evidence as support for adopting a Federal Marriage Amendment. See ESKRIDGE & SPEDALE, supra note 54, at 8 & n.13.
118. See, e.g., ESKRIDGE & SPEDALE, supra note 54, at 131-67 (detailing the beneficial effects same-sex marriage has had in Scandinavia, including longer unions, lower rates of sexually transmitted diseases, and more protection for children); see also id. at 171-72 (stating that the empirical trends presented by Stanley Kurtz predated Scandinavian same-sex marriage laws by decades, and therefore no causal relationship is plausible). According to Eskridge and Spedale: If state-recognized same-sex partnerships 'contributed' to the decline of marriage, as the critics maintain, we would expect to see something more than falling marriage rates, rising divorce rates, and soaring nonmarital birth rates in Denmark after 1989, Norway after 1993, and Sweden after 1995. Rather, we should expect to see marriage rates falling faster, divorce rates accelerating upward, and a surge in nonmarital birth rates. The data reveal no such trend. Not only do the registered partnership laws in Denmark, Norway, and Sweden not correlate to supernormal plunges in marriage rates and superelevated divorce rates but some of the trends move in the other direction. The 1990s do not even remotely indicate the approach of the "end of marriage"-rather, the institution shows renewed signs of life in the new millennium. Id. at 172 (pointing out also that "[e]ven if marriage rates fell more dramatically and nonmarital rates rose more dramatically after registered partnerships, such a sequence would not establish that the latter caused the former"); see also id. at 173-202 (debunking the claims of Kurtz, Senator Santorum, Kathleen Kiernan, Robert Bork, and others regarding the deleterious effects of registered partnership laws on the state of marriage in Scandinavia).
119. See Press Release, Am. Anthropological Ass'n, Statement on Marriage and the Family from the American Anthropological Association (Feb. 25, 2004), available at http://www.aaanet.org/press/ma_stmt_marriage.htm.
120. Id.
121. Pew Research Ctr., supra note 3.
122. See supra notes 24-25 and accompanying text.
123. Pew Research Ctr., supra note 3, at 14 (finding that 28% of same-sex marriage opponents justify their opposition with the reasoning that "homosexuality is immoral, a sin, or inconsistent to biblical teaching, and that another 17% say that homosexuality is in conflict with their religious beliefs").
124. See id. at 22. Regardless, 28% is a small number compared to 81% of "White Protestant Evangelicals" who oppose same-sex marriage. See id.
125. See Eskridge, supra note 61, at 1362-64.
126. See Baker v. Nelson, 191 N.W.2d 185,186 (Minn. 1971).
127. Genesis 2:24 (King James).
128. The judicial decisions which, heretofore, have invalidated statutes that prevent same-sex marriage have done so on equal protection and/or due process grounds. See In re Marriage Cases, 43 Cal. 4th 757, 784 (Cal. 2008); Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993), superseded by constitutional amendment, HAW. CONST. art. I, § 23 (finding that marriage statute was subject to "strict scrutiny" on equal protection challenge, and ordering the state to justify the discrimination by compelling state interest); Varnum v. Brien, No. CV5965, slip op. at 49-50 (Iowa Dist. Ct. Polk County Aug. 30, 2007), available at http://www.domawatch.org/cases/ iowa/Varnum%20v.%20Brien/vamum-d-08302007-ia-district.pdf (stayed awaiting appeal); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (holding that denial of marriage licenses to same-sex couples lacked rational basis and violated equal protection principles in the Massachusetts constitution). For the purposes of this Note, however, I will focus ony on the viability of constitutional arguments based on the religion clauses of the First Amendment.
129. U.S. CONST, amend. I.
130. See supra note 27 and accompanying text.
131. See, e.g., Sherbert v. Verner, 374 U.S. 398, 399-400 (1963) (establishing an exception to the South Carolina Unemployment Compensation Act for Seventh-Day Adventists, who cannot work on Saturday).
132. See supra notes 105-10 and accompanying text.
133. See Reynolds v. United States, 98 U.S. 145, 161, 166-67 (1878) (upholding a federal antipolygamy statute as applied to Mormons, who had a "duty... to practise polygamy" that "was enjoined by different books which the members of said church believed to be of divine origin").
134. See id. at 166.
135. Id. at 166-67.
136. See Chatlani, supra note 106, at 128-32 (stating that polygamy, unlike same-sex marriage, leads to statutory rape, sexual abuse, incest, poverty, and other ills).
137. Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) (holding that a Native American's right to free exercise was not violated when he was prohibited from using peyote by federal anti-drug laws), superseded in part by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141,107 Stat. 1488.
138. Id. at 879-81.
139. Id. at 881-82 (citing with approval other Supreme Court decisions that involved violations of the Free Exercise Clause and another constitutional right).
140. 42 U.S.C. §§ 2000bb to 2000bb-4 (2000).
141. 42 U.S.C. §2000bb-1.
142. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (holding that Congress exceeded the scope of its enforcement power under the Fourteenth Amendment in applying RFRA to the states).
143. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993). Santeria is a Pagan religion that combines the African religion of Yoruba with elements of the Roman Catholicism of the Spanish and Portuguese that colonized Africa. See MARGOT ADLER, DRAWING DOWN THE MOON: WITCHES, DRUIDS, GODDESS-WORSHIPPERS, AND OTHER PAGANS IN AMERICA TODAY 244-45 (1979). As of 2001, approximately 22,000 Americans identified themselves as Santerian. See KOSMIN, MAYER & KEYSAR, supra note 31, at 13.
144. Lukumi, 508 U.S. at 532.
145. The judgment was unanimous, even if the members of the Court did not agree on the exact reasoning. Justices Scalia and Souter filed separate opinions concurring in part and concurring in the judgment, and Justice Blackmun filed an opinion concurring in the judgment. Id. at 522.
146. Ariel Y. Graff, Free Exercise and Hybrid Rights: An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans, 29 U. HAW. L. REV. 23 (2006); Strasser, supra note 27, at 598.
147. See August Lehmkuhl, Sacrament of Marriage, in 9 THE CATHOLIC ENCYCLOPEDIA (1910), available at http://www.newadvent.org/cathen/09707a.htm.
148. Graff, supra note 146, at 35-36; see also RABBIS ELLIOT N. DORFF, DANIEL S. NEVINS & AVRAM I. REISNER, HOMOSEXUALITY, HUMAN DIGNITY & HALAKHAH: A COMBINED RESPONSUM FOR THE COMMITTEE ON JEWISH LAW AND STANDARDS (2006), available at http://www.rabbinicalassembly. org/docs/ Dorff_Nevins_Reisner_Final.pdf (approved on December 6, 2006, by a vote of thirteen to twelve).
149. DORFF ET AL., supra note 148, at 19. Interestingly, while the resolution acknowledges homosexuals in the Jewish community and recognizes their right to human dignity, it continues to uphold the biblical ban on sex between men. Id.
150. Id. at 17. Again, the resolution does not provide for full marriage to same-sex couples, but it recognizes and celebrates such relationships. Id.
151. See Graff, supra note 146, at 37-38.
152. Strasser, supra note 27, at 616 (quoting Turner v. Safley, 482 U.S. 78, 96 (1987)).
153. Graff, supra note 146, at 40-41.
154. Id.
155. Id. at 43-47.
156. Strasser, supra note 27, at 625 (quoting Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872,902 (1990) (O'Connor, J., concurring in the judgment)).
157. Id. at 629-30.
158. Shahar v. Bowers, 114 F.3d 1097, 1101 (11th Cir. 1997).
159. Id.
160. Id. at 1111.
161. Id. at 1099.
162. See U.S. CONST. amend. I.
163. For example, the existence of military chaplains could be interpreted as an establishment of religion, but the absence of military chaplains in areas where soldiers could not otherwise find particular clergy could be interpreted as a violation of those soldiers' free exercise rights.
164. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring).
165. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
166. Id. (citations omitted).
167. See, e.g., Zobrest v. Catalina Foothills Sch. Dist, 509 U.S. 1, 5 (1993) (dismissing the Court of Appeals' use of the Lemon test and then ignoring the test in ruling that the Establishment Clause was not violated); Mueller v. Allen, 463 U.S. 388, 394 (1983) (applying the Lemon test, but stating that "our cases have also emphasized that [the Lemon test] provides 'no more than [a] helpful signpost' in dealing with Establishment Clause challenges" (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)); see also ROGER J. R. LEVESQUE, NOT BY FAITH ALONE: RELIGION, LAW, AND ADOLESCENCE 91-95 (2002) (detailing the erosion of the Lemon test).
168. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring in the judgment).
169. Id. at 395 n.7 (majority opinion).
170. McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 864 (2005) (declining to eliminate the secular purpose requirement of the Lemon test concerning public displays of the Ten Commandments in courthouses in two Kentucky counties).
171. See supra section III.D.
172. See, e.g.. Stone v. Graham, 449 U.S. 39, 41 (1980) (rejecting the suggestion that the secular purpose of displaying the Ten Commandments in classrooms is that they are "the fundamental legal code of Western Civilization and the Common Law of the United States"); Sch. Dist of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 223-24 (1963) (rejecting the suggestion that the secular purposes of having students read from the King James Bible were "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature").
173. Lynch v. Donnelly, 464 U.S. 668, 671, 680-81 (1984).
174. Dean v. Dist. of Columbia, No. 90-13892, 1992 WL 685364, at *5 (D.C. Super. Ct. June 2, 1992), aff'd, 653 A.2d 307 (D.C. 1995).
175. Id. Mark Strasser points out that, "Such a statement is unobjectionable-murder, for example, is both religiously and legally proscribed." Strasser, supra note 27, at 606. Strasser criticizes the court's reasoning, however, stating that it could be used to validate behavior that the Supreme Court has found to violate the Establishment Clause. See id. at 606-07.
176. See, e.g., Van Orden v. Perry, 545 U.S. 677, 686 (2005) (allowing a Ten Commandments display on the grounds of the Texas State Capitol to remain because it had been there for forty years and thus represented "an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life," and also restricting Stone to Ten Commandments displays in public schools); Marsh v. Chambers, 463 U.S. 783, 795 (1983) (upholding the practice of opening a legislative session with a prayer, because such practice dated back over 200 years).
177. Marsh, 463 U.S. at 792-95.
178. See Wilson, supra note 111, at 611.
179. See KOSMIN, MAYER & KEYSAR, supra note 31, at 9-10, 13 (finding, for example, that "there are more than three times as many Hindus in the U.S. today as there were in 1990," that the Christian percentage of the population declined from 86% in 1990 to 77% in 2001, and that those identifying as non-religious increased from 8.2% to 14.1% over the same time period).
180. See Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954).
181. See Loving v. Virginia, 388 U.S. 1 (1967).
182. See Roe v. Wade, 410 U.S. 113 (1973).
183. See Van Orden v. Perry, 545 U.S. 677, 686 (2005).
184. Id. at 686 (describing the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life").
185. Id.
186. See Lynch v. Donnelly, 465 U.S. 668,690 (1984) (O'Connor, J., concurring).
187. Id. The endorsement test was later validated by the plurality opinion (the relevant portion of which was supported by five Justices) in County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 593-94 (.1989).
188. See supra text accompanying notes 172-73.
189. Lynch, 465 U.S. at 688-89 (O'Connor, J., concurring).
190. Id. at 688.
191. Allegheny, 492 U.S. at 668-69 (Kennedy, J., concurring in the judgment in part and dissenting in part). To see just how confusing and bizarre the Court's Establishment Clause doctrine has become, and how each Justice has very different and particular opinions about what tests should be applied and how, one need look no further than the syllabus to Allegheny: BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O'CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O'CONNOR, J., joined, and an opinion with respect to Part VI. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined, post, p. 3117. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 3124. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 3129. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 3134. Id. at 577 (syllabus).
192. Id. at 659 (Kennedy, J., concurring in the judgment in part and dissenting in part). The coercion test does not appear to have been endorsed by a majority opinion of the Court, but has nonetheless been used in conjunction with other tests.
193. Dean was discussed supra notes 173-75 and accompanying text. Most modern Establishment Clause cases, especially those outside of the Supreme Court, utilize a combination of the four tests discussed in this Note, which explains why Dean addressed the Lemon test while also discussing endorsement, history, and coercion.
194. Dean v. Dist. of Columbia, No. 90-13892, 1992 WL 685364, at *7 (D.C. Super. Ct. June 2, 1992), aff'd, 653 A.2d 307 (D.C. 1995).
195. See, e.g., Wilson, supra note 111, at 677 (stating that "[t]he alternate course of action suggested here is to deliberately extricate civil marriage from religious marriage," but not going into detail about what that means or entails). But cf. Daniel Avila, To Wed & Let Wed? The Intrusive Impact on Dissenting Religious Belief & Practices Created by Same-Sex Marriages, 38 NEW ENG. L. REV. 621, 621 (2004) (presenting the argument that "marriage will be entirely divided into two subsets: civil and religious," but suggesting that this division will not prevent state intrusion into the practices of religious groups).
196. See, e.g., CAL. FAM. CODE § 400 (West 2007); N.Y. DOM. REL. LAW § 12 (McKinney 2007).
197. S.B. 290, 2008 Leg., 425th Sess. (Md. 2008); see also Lisa Rein, In a Nod to Britt, Democrats Push Same-Sex Marriage as Civil Rights Issue, WASH. POST, Jan. 26, 2008, at B04. The headline refers to State Senator Gwendolyn Britt, who had planned to be a lead sponsor of the bill, but who died on January 12, 2008. Id.
198. Md. S.B. 290.
199. Strasser, supra note 27, at 628-29.
200. See WEST, supra note 96, at 77-79.
201. Id. at 77, 143-45 ("That the state, through over a thousand laws, makes it somewhat easier for married partners, but not for unmarried partners, to plan responsibly for risk, is a major difference in the treatment of couples who share with their straight and traditionally married friends and neighbors a common desire to engage in responsible caregiving.").
202. The suggestion that civil unions provide all the legal protections of marriage is, of course, not true, in that civil unions only guarantee state rights. A couple with a civil union cannot file a joint federal tax return, and cannot have their union recognized by other states. Of course, same-sex couples married in Massachusetts have the same problems.
203. WEST, supra note 96, at 145.
204. Andrew Sullivan, Why the M Word Matters to Me, TIME, Feb. 8, 2004, at 104, available at http://www.time.com/time/magazine/article/ 0,9171,1101040216-588877,OO.html.
205. Id.
206. WILLIAM BRADFORD, OF PLYMOUTH PLANTATION 1620-1647, at 86 (Alfred A. Knopf 1952) (1856).
207. See WAYNE D. DOSICK, LIVING JUDAISM: THE COMPLETE GUIDE TO JEWISH BELIEF, TRADITION, AND PRACTICE 301-02 (1995) ("[A] civil court cannot terminate the Jewish aspect of the marriage, so even after a civil divorce, the Jewish aspect of the marriage is still intact."). I am grateful to my mother, Dr. Mindy Schuman, for suggesting this point.
208. I am grateful to Professor Steven Goldberg for this fantastic analogy.
209. See US Marriage Laws, http://usmarriagelaws.com (last visited Dec. 19, 2007).
210. See supra note 196 and accompanying text.
211. See Avila, supra note 195, at 621-26 (suggesting that allowing same-sex couples access to civil marriage over the objections of religious groups would expose those religious groups to potential charges of discrimination in employment law situations).
212. See supra notes 14-18 and accompanying text.
213. See supra note 2 and accompanying text.