DOMA and Religion

[Gaffney, Edward]

The secular purpose requirement was stated succinctly in The Williamsburg
Charter, a bicentennial document celebrating religious freedom: "`Secular
purpose' should not mean `non-religious purpose' but `general public
purpose.'" "The Williamsburg Charter," 8 J. L. & Relig. 5, 14 (1990).  Too
succinctly for purposes of Bob's question.  But at least this understanding
challenges the identification of secular purpose with non-religion.  Ed
Gaffney

 ----------
From: Robert Destro
To: RELIGIONLAW
Subject: DOMA and Religion
Date: Wednesday, February 18, 1998 5:05PM

  The problem I have with this discussion is the basic problem I have with
  the "secular purpose" prong of the Lemon test itself: it is an
  incomprehensible exercise in characterization unless one first defines
  one's operative terms.

  Andy Koppelman's argument about the religious/secular divide rests upon
  the Supreme Court's "traditionalist" approach to the definition of
  "religion" in its Establishment Clause jurisprudence. This is problematic
  for several reasons:

  1) The Court has never deigned to tell us what "secular" means.

  2) The only rational way to define the term under the Establishment
  Clause case law is secular="non-religious"

  3) The Court uses at least two definitions of "religion". The EC
  definition looks to "traditional" religious indicia: ritual, sacred text,
  etc.  The FX definition looks to the role of the belief in the spiritual
  universe of the believer.

  4) Both the pro and anti-DOMA views rest on differing perspectives on
  "the good".

  5) What I would like to hear from Andy is an explanation of the
  following:

    a) what does he mean by "secular"?
    b) why should his views on the "proper" (moral?) treatment of same-sex
        unions be viewed as any less "religious" than (say) Rick Duncan's?

  Bob Destro
     --------------------------------------------------------------------
     Robert A. Destro                                      Destro at law.edu
     Columbus School of Law                                  202-319-5202
     The Catholic University of America                  fax:202-319-4498
     Washington, D.C. 20064-8005                       http://www.law.edu






   In effect, he argues that the justification for DOMA must be made in
  non-"traditional definition of religion" terms.