DOMA and Religion

[Andrew Koppelman]

Donovan's article isn't very good, but it points to an interesting problem
that's of general interest to the list.  How can one know when a law lacks
a secular purpose?  Now, the secular purpose prong of Lemon v. Kurtzman has
been criticized by many.  Yet Michael McConnell, one of its most incisive
critics, has acknowledged that there is something to it:  "The absence of a
strong secular justification for the categorization is the best evidence
that the program favors religion over nonreligion, or one religion over
another."   Michael W. McConnell, Religious Freedom at a Crossroads, 59
U.Chi.L.Rev. 115, 144 (1992).

Whenever a court says that a law lacks a secular purpose, it is necessarily
saying that whatever secular rationales are put forward for that law are
unpersuasive ones.  The court necessarily must inquire into the merits of
whatever secular legislative justification is offered by the state.  If the
argument that is offered makes sense only from within a particular
religious tradition, then the law must be invalidated.  To take a silly but
clear example, some opponents of same-sex marriage in Hawaii have argued
that, if Hawaii recognizes such marriages, it is likely to suffer
earthquakes and hurricanes.  The prevention of such disasters is a valid
secular purpose if anything is, but only some adherents of some religions
can believe that same-sex marriage will, as one group put it, "bring God's
wrath down on our Hawaiian islands."

Donovan's mistake is to think that he can show a lack of secular purpose
just by citing evidence that the proponents of DOMA had religious motives.
That can't be right.  The secular purpose requirement can't mean that a law
is invalid if it was enacted with religious motives; that would mean, as
McConnell has argued, "that those whose understandings of justice are
derived from religious sources are second-class citizens, forbidden to work
for their principles in the public sphere."  Ibid.  But I still worry about
whether the objections to homosexual conduct that have been offered are
translatable into secular terms.  If they're not, then DOMA is just like
the statute prohibiting the teaching of evolution.  I have yet to see a
secular justification for discrimination against gays that I found
plausible.  And for that reason, it's hard for me conclusively to dismiss
Donovan's thesis, even if his execution is pretty clumsy.

But it's also hard to make a conclusive argument in favor of his thesis,
which depends on proving a negative:  that there is no secular
justification for an official line against homosexuality.  When a federal
law restricting Medicaid funding for abortions was challenged on the basis
that "it incorporates into law the doctrines of the Roman Catholic Church
concerning the sinfulness of abortion and the time at which life
commences," the Supreme Court responded that the statute "is as much a
reflection of 'traditionalist' values towards abortion, as it is an
embodiment of the views of any particular religion."  Harris v. McRae, 448
U.S. 297, 319 (1980).   One may similarly argue that state condemnation of
homosexuality merely reflects the traditionalist view that homosexual
conduct is worthless and harmful, a view that stands on its own bottom
without depending on any particular religious doctrine.

This kind of answer threatens to vitiate the secular purpose requirement
altogether:  a state could argue, for instance, that a statute prohibiting
the teaching of the theory of evolution in the public schools reflects
"traditionalist" values toward the origins of the human race.  Once more, a
claim of impermissible purpose is usually a claim that the justifications
for a law that the state is offering are too implausible to be believed.
Brian Barry has argued that, because "the moral condemnation of acts that
are not harmful to others makes sense only against a background of
religious belief," the common condemnation of homosexual conduct is
intelligible only as "a sort of religious hangover."   Still, the causal
connection with religion is less clear than it is in the case of the
anti-evolution law.  Barry concedes that "we find people in contemporary
societies who are prepared to say that . . . homosexual acts between
consenting adults are wrong, even though they are not willing to invoke any
tenet of religion to back up their claim." Brian Barry, "How Not to Defend
Liberal Institutions," in R. Bruce Douglass, Gerald R. Mara, and Henry S.
Richardson, eds., Liberalism and the Good (New York:  Routledge, 1990), p. 46.

For what it's worth, my own constitutional attack on DOMA will be out
shortly in the Iowa Law Review.  My argument turns on an interpretation of
Romer v. Evans, a case about which there has been ample discussion on this
list.  I've also written a defense of the Romer decision, which expands on
some postings to this list.  It has just been published.  "Romer v. Evans
and Invidious Intent," in symposium on Romer v. Evans, 6 Wm. & Mary Bill of
Rights J. 89 (1997).  Reprints available on request.  (The issue also
includes a thoughtful response by our own Rick Duncan, explaining (if
explanation is needed) why my claims are wrong.)

The first footnote of the Romer article states:  "this Essay is gratefully
dedicated to the members of the ReligionLaw list on the internet, with whom
I argued the merits of Romer in the days after it was handed down; this
Essay grows out of what I wrote then, and attempts to address objections
that were raised there."

Thanks, folks.






At 08:38 AM 2/17/98 -0600, Rick Duncan wrote:
>James Donovan's article on DOMA and the EC takes the position that
>DOMA flunks Lemon because it lacks a secular legislative purpose
>("DOMA has no secular purpose that is primary and sincere.")
>
>He supports his argument in part with numerous quotes from
>congressional supporters of DOMA. He also argues that there is a close
>link between religion and "homophobia." Consider these quotes:
>
>1) "People who are racial bigots tend to hold prejudicial views on
>other groups as well. Consequently, church attendance should also
>predict homophobia, or dislike for homosexuals. Empirical studies
>support this link. In one study, there was a regular step-wise
>progression between the frequency of church attendance and the score
>on a homophobia test. While those who 'never' went to church averaged
>55.08 on the homophobia test, each increasing category of frequency
>scored higher until those who attended 'weekly' earned an increased
>homophobia score of 66.19 on the test."
>
>2) "The simple fact of exposure to religious stimuli, therefore,
>increases the likelihood of becoming more homophobic. Since religious
>folk are reliably more homophobic than nonreligious individuals, any
>overt expression of homophobia, such as DOMA, could derive from
>religious influences."
>
>3) "In fairness, I do not mean to suggest that all religions are
>necessarily homophobic. Not every religion invests emotional and
>social capital in demonizing gay men and women. Unitarians and Quakers
>are notable exceptions....Some religions which currently burden
>homosexuals with harsh recriminations have not always done so. Roman
>Catholicism, for instance, has been revealed to have found antigay
>oppression in the 13th century, relatively late in its institutional
>history. [citing John Boswell] The dispassionate student can hope that
>such oppressive practices are not inherent and unchangeable dogma."
>
>The article is published at 4 Mich. J. Gender & Law 371 et seq.
>Fascinating reading.
>--
>                   ----------
>             Rick Duncan (rduncan at unlinfo.unl.edu)
>
>"Godlessness is the first step to the gulag." --Solzhenitsyn
>

________________________________________

Andrew Koppelman
Assistant Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
akoppelman at nwu.edu
________________________________________