The four conservatives on the Supreme Court have repeatedly argued that opposition to same-sex marriage is not based on hatred but rather on traditional morality and religious belief, and that these are sufficient grounds upon which to deny same-sex couples the right to marry. Will the furor over "religious liberty" laws that would have legalized discrimination against same-sex couples change their minds?
The firestorm over Indiana's S.B. 101 convinced the Indiana Legislature and Governor Michael Pence to amend their religious liberty law to expressly prohibit discrimination against same-sex couples, and it persuaded lawmakers in Montana, Arkansas, North Carolina, and Georgia to drop the subject altogether.
The conflict over Indiana S.B. 101 clarifies two things. First, the core purpose of the "religious liberty" movement was to enable persons who are religiously opposed to same-sex marriage the right, under protections for religious conscience, to discriminate against same-sex couples. And second, whatever one's beliefs about the propriety of same-sex marriage, most Americans are opposed to discrimination on this ground.
In United States v. Windsor the Supreme Court found that the federal Defense of Marriage Act was unconstitutional -- not because it invaded the power of the states to define who is married and who is not, but because it was motivated by animus against gay and lesbian couples. The High Court repeatedly asserted that the sole purpose and effect of DOMA was to "injure," "harm," "disparage," "demean" same sex couples, to treat their unions as "second-class," and to "humiliate their children."
Justice Scalia denounced the majority in Windsor for equating "traditional morality" with "animus." In his view Justice Kennedy and the justices who joined the majority opinion were defaming people who were following longstanding -- indeed ancient -- beliefs about same-sex conduct. Scalia distinguished between hatred of a class of persons and disapproval of a type of conduct -- the "love the sinner, hate the sin" position that we are all well-advised to take in disputes over religious, political, or social mores.
This misses the point. The question is not whether persons with a sincere religious belief have hatred in their hearts. Few people would self-identify as "bigots." The question is, "Is there a rational reason to deny gay and lesbian couples the right to marry?"
I agree with Justice Scalia that it is presumptuous to assert that a person feels "hatred" towards another human being merely because they wish to deny that person certain legal rights. Many religious people claim to "love" gay and lesbian people and I have no reason to doubt their description of their own emotional state.
But in enjoining us to "Love thy Neighbor as Thyself" Jesus did not demand that we have certain emotions. He demanded action! And just as religious or legislative or judicial conservatives should not be condemned as bigots simply because they hold traditional beliefs about same-sex marriage, neither should they justify their actions on the basis that all they have is love and concern for those whom they regard as sinners. No! More is required! To justify discrimination under the law the judges on the Supreme Court must articulate some rational reason for treating same-sex couples differently than opposite-sex couples.
And there is no rational reason to treat same-sex couples differently. Procreation is not a ground of differentiation between same- and opposite-sex couples. Infertile opposite-sex couples have a right to marry. Elderly opposite-sex couples have a right to marry. People in same-sex unions have children from previous relationships. Same-sex couples adopt children. Lesbian couples use artificial insemination and gay couples use surrogacy arrangements to have children.
The "religious liberty" cases have shifted the debate. The focus is now on "discrimination." That is the framework within which the Supreme Court will decide this case. The burden is on Justice Scalia and the other conservative justices to articulate rational reasons for the discrimination that they have heretofore supported. The "religious liberty" cases and statutes have made their job a lot harder because it has become apparent that there is no rational reason for that discrimination.