This blog started out as a companion piece to my book, Musings from the Christian Left (excerpts of which can be found in the July 2004 link) and to support a planned radio show. Now, its simply a long term writing project from a Christian Left Libertarian perspective (meaning I often argue for liberty within the (Catholic) Church, rather than liberty because the church takes care of a conservative view of morality.

Tuesday, June 01, 2004

Gay Rights (Geocities Rescue)

The legal and moral status of gays and lesbians has always been problematic in human society, especially in the Judeo-Christian world. In modern American society, it occurs in at least two contexts: constitutional and moral. The demands of sound public policy are then addressed. We begin with the constitutional questions raised by the issue.

Constitutional Questions
It is amazing that in the modern age homosexuality is an issue at all. Under the national Constitution the issue of sexuality was not even mentioned. The recent Supreme Court decision overturning the Texas Sodomy Law relies on the 10th Amendment right of privacy.

An exception to this is the standing of homosexuals in the federal service (both civilian and military). A constitutional foothold for this is found in the elastic clause, which gives the Congress the power to pass laws that are necessary and proper to exercise its enumerated constitutional powers.

On sexual issues the government has two options. It can be a leader and pioneer greater protection for sexual options as it did when Truman desegregated the military, or it can follow the lead of state governments on the issue. It has no standing to increase regulation of sexual matters without a clear and present need.

The recent Defense of Marriage Act treads dangerous constitutional ground by allowing states to opt out of the full faith and credit clause in the Constitution. It is dangerous precedent for the Congress to pass a law that it can ignore the Constitution by statute. For one thing, it invites the ire of those who support voting representation to the District of Columbia by statute. It seems that the right wing can no longer hide if it wishes to honor such a dangerous precedent.

The Fourteenth Amendment expanded the role of federal intervention into sexual politics, although it seems to argue for moving forward in extending rights, not backward. This Amendment requires the Federal government to guarantee that state laws provide equal protection to all of its citizens, period. If a State government, acting as the agent of culture, grants a privilege or a protection in any area, then all in that State must be given an opportunity to enjoy it. The State as cultural arbiter of sexuality is examined next.

The Cultural Regulation of Sexuality
In American Society cultural regulation, as much as it is practiced, is accomplished at the State level. A key part of this regulation is the recognition of marriage and the raising of children. In a democratic society the mores of the dominant culture are reflected in these regulations. In this country the Judeo-Christian culture is dominant, and its mores are reflected in the law. If this were a predominantly Muslim or Mormon culture polygamy would be an accepted part of the law. However, in the current dominant culture in most states polygamy is considered a crime. In the area of sexuality cultural mores are fluid. In the days of the Hebrew Patriarchs polygamy was considered moral, as it was more practical in a primitive society. As society moved to a more urban setting this changed, and the sexual mores reflect this change.

In the American culture tolerance is a strongly held virtue. This is by necessity, as tolerance of the differences of others leads to their tolerance of your differences. In former times anti-Catholicism was a part of the civic and religious culture. Among most Americans this is no longer considered acceptable.

As the belief in tolerance has increased many have come forward to demand acceptance. Among these are gays and lesbians. As the culture changes, the law is adapting to it, especially given the wider application of the equal protection clause of the Fourteenth Amendment. An aspect of equal protection is the question of laws prohibiting homosexual behavior. To inform our discussion on this homosexuality as a moral question is examined.

Homosexuality as a Moral Question
Many argue there is no question involved, as they have been taught that homosexuality is wrong and that is the end of it. That is adequate for teachings on personal morality. However, in a free society it is not advisable to base public policy choices solely on religious authority. To blindly accept such teaching in the life of the state invites theocracy, which is contrary to the founding principles of the republic and which often leads to the kinds of oppression found in Iran against infidels and in nineteenth century America against Catholics. Moral teachings cannot dictate public policy choice. Rather, they are to be used to inform rational choices in the context of a free society. I attempt to do so now.

Three moral objections to homosexuality are examined: the biblical example of Sodom and Gomorrah, the nature of the homosexual relationship and the majority’s feelings about the homosexual act.

I offer no argument that the sins of the city-state of Sodom and Gomorrah cried to heaven for justice. I do question whether the sin that cried to heaven was simply homosexuality. A reading of the biblical text shows the sin of Sodom was not its permission of homosexuality but its inhospitality to Lot’s visitors, who in reality were the Angel of the Lord. Genesis, states that the crowd wished to have its way with Lot’s visitors. One does not demand to rape God and expect to come away unscathed. Rape was the sin of Sodom, and I firmly agree that this does cry to heaven for justice.

The homosexual relationship can be examined for completeness. Biologically it is obviously incomplete, as by its very nature it precludes the ultimate in sexual love, the creation of a new individual. However, this does not preclude it from being the ultimate form of love. The ultimate form of love is to lay down one's life for another. This comes through actual death (such as protecting a lover from gay bashers) or through selfless dedication. There is nothing in the homosexual relationship that precludes this, and in fact it often occurs when one cares for a lover who has been stricken by AIDS.

The final objection is that many find homosexual sex personally disgusting. While this is an argument for not engaging in homosexual relations personally it is not strong enough to prohibit it to others who do not find it so. Personal preferences and prejudices do not determine public policy choices. Part of one’s sexual preference is to exclude other preferences. It is natural for displays of homosexual affection to disquiet heterosexuals, just as displays of heterosexual affection give some queens the willies. In a majority gay culture, do heterosexuals want their conduct regulated? I think not. Those who are disgusted by the idea of homosexuality need to ask themselves which is more disgusting, the act itself or the state taking an interest in the act.

Having argued that the first principle of morality is that God loves man (as that is God's nature), it follows that any moral code must reflect God's desire that man be happy and fulfilled in his humanity. Behaving inhumanely is not natural, or outside the natural order, if you will. In both natural law and divine law homosexuality is not disordered for one who was created homosexual by God. Under such an ordering, the teaching that homosexuals refrain from their God-given sexuality is disordered, as its effect is to alienate homosexuals from the Church and place them outside its wise counsel on monogamy as opposed to promiscuity. When the Church promulgates a teaching it is responsible for the result. If the result of a church teaching is teen suicide and adult promiscuity, then the teaching against homosexuality is disordered.

Some religious people wish to convert homosexuals into heterosexuals, or teach them to remain celibate in order to undertake religious practice. I disagree. To teach another about morality, you must first gain their trust. The reason gays and lesbians don't trust evangelicals and traditionalist Catholics is because the would-be evangelists don't trust the gays when they authentically state that they did not chose to be gay, that God created them that way. Now, these evangelicals, who are not gay, claim to know where the gays are coming from. They can't so by teaching homosexuality is a choice they lie. To be trusted, you must trust. Authenticity is important. It is why alcoholics listen to each other rather than ministers to get sober, they trust someone who has been there - not someone who has not.

Others do not wish to evangelize gays. They are instead under the misguided notion that God punishes a culture that allows homosexuality. The most interesting example of this is the reaction of conservative Texas Republicans to Log Cabin Republicans. This is not only silly; it is uncharitable. God demands we treat others with charity, even and especially those we don’t agree with. Practicing legal discrimination in God’s name is flat out wrong, especially given the doubts I have raised about whether homosexuality is sinful at all. I have long believed that if Jesus were teaching the story of the Good Samaritan today, he would change the Good Samaritan to the Good Drag Queen. This is just his style. If you don’t think so, then you really don’t know the Lord as well as you think you do.

Having proposed a more enlightened view of the moral standing of gays, I address the question of their standing before the law.

The Demands of Sound Public Policy
Two public policy questions are important here: the prohibition against homosexual activity and public health.

Until the Texas decision striking them down, many jurisdictions had laws prohibiting homosexual activity (the only holdout is the military – which the Court did not include and may have lost the majority vote in doing so – the military establishment is now defending itself against the constitutional rights of its citizens – an obvious tyranny). With the question of private sexuality effectively settled the question of public recognition remains. (See the essay on Iraq for more information on American militarism).

Public affirmations of sexuality among heterosexuals is not only condoned, but legitimized through laws on marriage and family relations. Under equal protection homosexuals have an equal right to state sanction. It is also in the state's best interest to acquiesce to such rights.

The AIDS epidemic has highlighted the public health question involving homosexuality. When monogamous homosexuals are not given access to the institution of marriage, then the law implicitly endorses promiscuity. Venereal disease has always made promiscuity a dangerous choice, both for straights and gays. With the advent of AIDS it becomes fatal. The sanctioning of marriage by homosexuals lessens promiscuity and brings gays into the moral order. In doing so it helps to halt the spread of disease. As such it is in the interests of the state and the society. Social and religious leaders who accept the legitimacy and morality of monogamous gay relationships then have standing to teach that promiscuity is wrong. Until they do so, they are hopelessly out of touch, putting their gay brethren out of reach.

Finally, when my wife and I were preparing for marriage in the Church we were taught that we make the marriage; the function of the priest was to provide witness to our vows only. Surely if this is true for us, it is also true for gays and lesbians.


Blogger James Young said...

"The recent Defense of Marriage Act treads dangerous constitutional ground by allowing states to opt out of the full faith and credit clause in the Constitution."

Are you on drugs? Art. IV, s. 1, of the Constitution specifically provides that "Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof." In other words, unlike most congressional enactments of the last 80 or so years, DOMA was enacted to explicit constitutional authority.

12:55 AM

Blogger Michael Bindner said...

That interpretation is only possible if you totally ignore the prior sentence, which says that states shall honor the actions of other states - not to mention the subsequent 14th Amendment which gaurantees equal protection under law.

DOMA will fall, probably next year, unless the Court upends it first by finding that states can't stop gays from marrying.

9:06 AM

Blogger Philip Chandler said...

The US Supreme Court decision overturning the Texas state sodomy statute (at 21.06 of the Texas Code) was not premised on a 10th Amendment analysis, as stated by the author of this interesting column. In Lawrence v. Texas, 539 U.S. 558 (2003), a five member majority of the Court held that the Texas statute (and, by extension, the sodomy statutes of about 13 other states) violated the Due Process Clause of the Fourteenth Amendment. The precept of substantive due process holds that there are some spheres of personal autonomy that may not be regulated by the state under any circumstances, absent a very strong showing by the state that such regulation is necessary. This precept arises from interpretations of the word “liberty” as this word appears in the text of the Due Process Clause.

Associate Justice Sandra Day O'Connor joined the majority decision in a separate concurrence, in which she argued that the Texas statute (and similar statutes in other states) should have been struck down under an equal protection analysis as opposed to the due process analysis employed by the five-member majority. In some respects, her concurrence was even broader than the majority opinion.

The standard of review employed by the Lawrence Court remains open to interpretation. Although the Court employed the language of traditional rational basis review (which is a highly deferential standard, under which the state almost always prevails), numerous commentators have pointed out that the Court appears to have employed a much more searching standard of review. Some commentators have argued that the Court employed what is commonly known as rational basis “with teeth” – a standard of judicial review explicated in cases such as United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996). In these decisions, the Court held that a bare desire to harm a politically unpopular group can never constitute a legitimate state interest for the purposes of rational basis review. Under traditional rational basis review, a statute will be upheld in the face of constitutional attack provided the state demonstrates that the statute in question is rationally related to a legitimate state interest. The fit between the interest concerned and the sweep of the statute may be tenuous and imprecise (see Heller v. Doe, 509 U.S. 312 (1993)); furthermore, the burden falls squarely on the plaintiff to demonstrate that the statute is not rationally related to a legitimate state interest. The reviewing court may reach out on its own and posit a legitimate state interest, independent of the state’s arguments at trial. It is for these reasons that the rational basis test almost always results in victory for the state; adoption of this test is almost outcome dispositive in and of itself.

Bearing the above in mind, it is clear that the Lawrence Court did not adopt traditional rational basis review in striking down the Texas sodomy statute, despite the fact that the Court adopted much of the language associated with traditional rational basis review. Had the Court really invoked this highly deferential standard of review, it is almost certain that the statute would have been salvaged. One of the US Courts of Appeals recently opined that the Lawrence Court actually employed a standard of review known as quasi-strict scrutiny (or intermediate-level review). Under quasi-strict scrutiny, the burden falls on the state to demonstrate that the statute in question is substantially related to an important state interest (a more demanding standard of review than mere rational basis review; the burden shifts from the plaintiff to the state under this more demanding standard).


3:29 PM

Blogger Philip Chandler said...

In Witt v. Department of the Air Force, No. 06-35644 (2008), a three-judge panel of the US Court of Appeals for the Ninth Circuit examined the text of Lawrence and concluded, based on several factors, that the Court adopted quasi-strict scrutiny in striking down the Texas statute (in fact, the dissenting judge – William Canby – argued that the Lawrence Court actually applied strict scrutiny, whereas his two colleagues argued that the Lawrence Court applied quasi-strict scrutiny). The two-judge majority argued that “We cannot reconcile what the Supreme Court did in Lawrence with the minimal protections afforded by traditional rational basis review.”

First, the panel pointed out that the US Supreme Court explicitly reversed Bowers v. Hardwick, 478 U.S. 186 (1986) (a truly obscene earlier decision in which the Court held that the states could indeed criminalize gay sex, even when such sex occurred in strictly private settings between consenting adults), noting the “Court’s own failure to appreciate the extent of the liberty at stake” in handing down Bowers (see Lawrence, 539 U.S. at 567). This observation was entirely inconsistent with traditional rational basis review, which permits the reviewing court to adduce even post hoc justifications for the challenged statute. Under the “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)) that characterizes rational basis review, the Court would have had no business considering the extent of the liberty at stake.

Second, the Court relied on a string of due process cases predicated on heightened scrutiny in handing down Lawrence. These cases included Griswold v. Connecticut, 381 U.S. 479 (1965), Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of S.E. Pa. v. Casey, 510 U.S. 1309 (1994); in Lawrence, the Court noted that its own holding in Casey cast its holding in Bowers into serious doubt (see Lawrence at 539 U.S. at 573-74). The Court overturned Bowers after analyzing the applicability of these cases to the issue of sexual privacy and reproductive autonomy; specifically, the Court overturned Bowers because “[i]ts continuance as precedent demeans the lives of homosexual persons.” (see Lawrence, 539 U.S. at 575.)

Third, the Court’s rationale for striking the Texas statute (the inquiry analysis that the Court applied) was inconsistent with traditional rational basis review. In striking the statute, the Court declared that “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Lawrence, 539 U.S. at 578 (emphasis added). Had the Court applied traditional rational basis review, it would not have identified a legitimate state interest to “justify” the particular intrusion of liberty at issue in Lawrence; regardless of the liberty involved, any hypothetical rationale supporting the statute would have sufficed to sustain the statute in the face of constitutional attack.


3:30 PM

Blogger Philip Chandler said...

This decision survived a particularly bitter en banc call. The en banc call did not attract the necessary majority of votes to force en banc reconsideration of this decision, prompting several of the more conservative Ninth Circuit justices to issue strongly-worded dissents. Because this decision was not reviewed en banc, it is now the official position of the US Court of Appeals for the Ninth Circuit.

The US Court of Appeals for the First Circuit also considered the reach of Lawrence in Cook v. Gates, Nos. 06-2313, 06-2381 (2008), and concluded (in a divided three-judge opinion) that the Lawrence Court did not apply rational basis review, but instead adopted “a balancing of constitutional interests that defies either the strict scrutiny or rational basis label.” Like the US Court of Appeals for the Ninth Circuit, the US Court of Appeals for the First Circuit carefully scrutinized the logic employed by the US Supreme Court in handing down Lawrence.

All of this may seem somewhat arcane and abstruse – but in the context of a discussion of the constitutional basis for gay equality, it is essential that these issues be addressed thoroughly and accurately.

Thank you,


3:33 PM

Blogger Michael Bindner said...

Thanks, Philip.

Do you have any comments on Marriage Equality?

8:21 PM

Blogger Philip Chandler said...

Dear Michael,

I certainly do have very strong feelings about marriage equality, and I make no secret of these feelings. Section 1 of the Fourteenth Amendment to the US Constitution states that "No State shall...deny to any person within its jurisdiction the equal protection of the laws." Most state constitutions are more generous, either by their terms or as construed by state reviewing courts, than is the US Constitution with respect to this guarantee (and with respect to other guarantees).

A good example on point is that of the New Jersey state constitution. This constitution does NOT contain an explicit equal protection clause; however, state courts in New Jersey have "read into" Article 1, paragraph 1, an equal protection guarantee that is more generous (as applied by state courts) than is the Equal Protection Clause of the Fourteenth Amendment.

The first state supreme court to grant all of the substantive rights of marriage (at the state level) to gay couples was the Vermont Supreme Court (Baker v. Vermont, 744 A.2d 864 (Vt. 1999)). In this decision, the state court held that the "Common Benefits Clause" of the Vermont constitution prohibited the denial of the rights of marriage to gay couples; this Clause is interpreted more generously by the Vermont Supreme Court than is the Equal Protection Clause of the Fourteenth Amendment.

In federal equal protection jurisprudence, challenges to statutes, executive orders, policies, municipal ordinances, etc. are reviewed using one of three different standards of review; the standard of review applied by a federal court depends on 1) the nature of the right that is abrogated by the statute in question and 2) the status of the class of persons adversely impacted by the statute in question. This has led many constitutional scholars to complain that the federal courts apply an overly mechanistic, non-contextual approach to the adjudication of equal protection challenges; furthermore, the standard of review chosen by the federal courts is almost outcome-determinative in and of itself (rational basis review almost always results in victory for the state, whereas quasi-strict scrutiny and strict scrutiny usually result in victory for the plaintiff). The New Jersey courts, for example, apply a more flexible approach to equal protection challenges, in which the reviewing court is allowed to apply a balancing test. Under this more flexible standard, a right does not have to be identified as "fundamental" to trigger a searching standard of judicial review -- this standard will instead balance the need for the legislative or executive action against the infringement of the right at issue (see Abbott v. Burke, VI 163 N.J. 95, 748 A.2d 82 (2000), in which the New Jersey Supreme Court handed down what is widely regarded as one of the most significant desegregation rulings since the handing down of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)).


9:22 AM

Blogger Philip Chandler said...

Since the Vermont decision was handed down, activists for marriage equality won the right to marry by appealing to state supreme courts in California, Connecticut, Iowa, and Massachusetts; all of these decisions were predicated on state constitutional analysis, rendering them immune from review by the US Supreme Court. Since then, three other states (Vermont, Maine, and New Hampshire) enacted gay marriage statutes without any form of judicial prompting, and New York appears poised to become the seventh state in the nation to permit gay marriage (Governor Patterson recently announced that he has the votes in the state Senate; the state Assembly has already passed a companion measure).

I see marriage equality as a simple matter of justice. One of the reasons I considered it so important to vote for President Obama is because it is this President who will decide the composition of the US Supreme Court over the course of (hopefully) the next seven years; during that time, Scalia or Thomas could well pass away or retire from the bench. I wouldn't want to pin my hopes regarding gay marriage on the current US Supreme Court, but the picture could look very different were one or more of these stooges to be replaced by a good, liberal to centrist nominee (we have already seen the outstanding quality of the new Justice Sonia Sotomayor, who is widely regarded as a good, fair, and liberal federal judge).

I see marriage equality as being about basic fairness, and nothing else. I also believe that the blanket denial of marriage rights to gay couples constitutes a flagrant denial of due process of law to an entire class of people, just as Justice White argued (in Griswold v. Connecticut, 381 U.S. 479 (1965)) that the blanket prohibition of the sale or usage of contraceptives to married couples deprived these couples of liberty without due process of law (this decision was expanded in Eisenstadt v. Baird, 405 U.S. 438 (1972) to apply to unmarried couples too). I long for the day when the obscene measure named the “Defense of Marriage Act” (DOMA) is either repealed or declared unconstitutional, and I long for the day when openly gay men and lesbians are permitted to serve in the armed forces.

May that day not be long in coming…


9:22 AM


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