Preservationism, or the elephant in the room: how opponents of same-sex marriage deceive us into establishing religion."People place their hand on the Bible and swear to uphold the Constitution. They don't put their hand on the Constitution and swear to uphold the Bible." --Jamin Raskin, Professor of Law, American University, in testimony before the Maryland Senate Judicial Proceedings Committed (1)
INTRODUCTION
I. DEFINING "MARRIAGE".
A. A Brief History and Overview
B. The Establishment Clause and Our Religious Heritage
II. A PRIMER ON THE FEDERAL MARRIAGE AMENDMENT AND ITS KIN
A. What Are Same-Sex Marriage Bans and What Do They Do?
B. Who Supports the FMA?
III. WHERE ARE WE GOING, AND WHY ARE WE IN THIS HANDBASKET?: A
SHIFT IN FUNDAMENTAL(IST) RHETORIC
A. The Theoretical Underpinnings of Preservationism
B. Preservationism: An Application
IV. MODERN ESTABLISHMENT CLAUSE JURISPRUDENCE: "HOPELESS
DISARRAY".
A. The Lemon-Endorsement Test: Context-Specificity and the
Requirement of Government Neutrality Toward and Among
Religions
1. The Lemon Test
2. The Endorsement Test
B. The Historical-Acknowledgement Test: A Free Pass to
Christian Majorities
1. "Unbroken History": Chief Justice Rehnquist's Test
2. The Framers and Original Meaning: Justice Scalia's Test
V. DO SAME-SEX MARRIAGE BANS PASS MUSTER?: APPLYING THE
LEMON-ENDORSEMENT TEST
A. The Search for a Secular Purpose: Evaluating the Arguments
Against Same-Sex Civil Marriage
1. The Federal Defense of Marriage Act (DOMA), Social
Science, and a Bit of History
2. Why We Have Opposite-Sex Marriage: Circularity,
Question-Begging, and a Pound of Logic
3. Of Slippery Slopes and Social Destruction:
Consequentialism, Perversity, and Chicken Little
4. A New Slippery Slope: Religious Freedom and Sincerely-Held
Beliefs
5. Warhorses: Public Health and Morals
6. Federalism, the Conflict of Laws, and Institutional
Legitimacy
B. Applying the Lemon-Endorsement Test
1. What Does the Reasonable Observer Know About the
Context and History of Same-Sex Marriage Bans and the
FMA?
2. Does the FMA Have the Purpose of Endorsing or
Establishing Religion ?
3. Does the FMA Have the Effect of Endorsing or Establishing
Religion?
4. Does the FMA Segment Society into Political Insiders and
Outsiders Based Upon Their Religious Beliefs?
VI. CONCLUSION: RESOLVING OUR DEFINITIONAL PROBLEM
INTRODUCTION America is suffering from a definitional crisis regarding the term "marriage." This crisis has crystallized in the context of the debate over same-sex marriage. (2) Because Americans cannot agree on what marriage is or should be, we cannot agree on whether same-sex couples should be allowed to marry. Moreover, Americans have historically--and in recent years, sometimes deliberately--conflated notions of civil marriage and religious marriage. (3) This has resulted in the imposition of a religious definition of marriage on the larger society. As a consequence, the definitional crisis is not mere disagreement about the humanity of same-sex couples--rather, the crisis also carries constitutional implications because of the tangled histories of religious and civil marriage. Nevertheless, the status quo (opposite-sex marriage only) remains largely undisturbed: In all but one of the fifty states, (4) marriage is presently defined--either explicitly or implicitly--as the legal union of one man and one woman. (5) Most of the present-day definitional tension arises because American governments have historically intertwined the civil and religious roots of marriage. According to the Pew Research Center, the two most common demographic indicators for opposition to same-sex civil marriage are age (6) and religiosity. (7) Indeed, young adults and "seculars" actually favor same-sex civil marriage by substantial margins. (8) The most commonly-cited reason for opposing same-sex civil marriage is that it goes against one's own religious beliefs. (9) These statistics are consistent with the Pew Research Center's conclusion that opposition to homosexuality and gay rights is derived primarily from religious beliefs. (10) This is not to say that one could not both hold religious beliefs opposed to homosexuality and support same-sex marriage as a civil right. Indeed, the very fact that a small percentage of Evangelical Christians favor same-sex civil marriage shows this to be possible. (11) One likely reason for this welcome statistical variance is that many religious believers do not consider it appropriate for their beliefs to drive generally-applicable public policy--said differently, these believers prefer that spiritual and worldly authority remain separate. (12) It seems that, despite their philosophical differences, (13) religious believers and "Secularists" (atheists, humanists, etc. (14)) have nevertheless found common ground. (15) These highly-textured statistics motivated me to investigate the extent to which religious beliefs are the driving force behind statutory and constitutional initiatives to prohibit judicial or legislative recognition of same-sex civil marriage. My findings were unsurprising: The overwhelming majority of support for bans on same-sex civil marriage has come from religious believers, and the so-called "secular justifications" for these bans are mere pretexts for religious beliefs that homosexuality, homosexuals, and same-sex couples are evil or sinful. Opponents of same-sex civil marriage derive their preferred definition of marriage almost entirely from the Christian precept that one-man, one-woman marriage was "ordained by God" (16) and is therefore inherently superior to same-sex unions. The ongoing effort of the radical Christian right to impose its religious beliefs on Americans of all faiths and traditions has begun in piecemeal fashion--at the state level through state statutes and constitutional amendments, and at the federal level through the federal Defense of Marriage Act (17) and the various proposed amendments to the U.S. Constitution. (18) This Article discusses how, because of America's history of blending religious and civil marriage, as well as the preservationist's ongoing campaign to codify religious marriage in the law, our current definition of "civil" marriage is impermissibly derived from religious precepts, without a sufficient--or rational--secular justification. What is the remedy? Courts should take a hard look at the substantive justifications offered in support of same-sex marriage bans, bearing in mind that (1) these justifications are universally offered by religious believers but are infrequently offered by credentialed Secularists, and (2) they are the result of a studied use of pretextual, secular-sounding language to cloak a religiously-motivated bias against homosexuals and same-sex couples. In Part I, I describe the definitional problem, briefly explore the roots of civil and religious marriage in America, and survey the variety of religious and irreligious beliefs about the morality of homosexuality and same-sex unions. In Part II, I describe what same-sex marriage bans are, introduce the proposed Federal Marriage Amendment (FMA) as exemplary of all such bans, and determine that fundamentalist religious beliefs are the common trait held by the vast majority of witnesses who testified before Congress in favor of the FMA. In Part III, I introduce the concept of "preservationism"--a unifying theory to explain the invidious religious purpose underlying the "secular" justifications for same-sex civil marriage bans. In Part IV, I discern the background neutrality principles underlying modern-day Establishment Clause jurisprudence, briefly delineate the two primary interpretive methods that the Supreme Court currently applies to Establishment Clause claims, and determine that the Lemon-endorsement test is the appropriate vehicle for analyzing the First Amendment implications of same-sex marriage bans. In Part V, I raise--and dismiss--the primary substantive objections to same-sex marriage that are continually raised by opponents of same-sex marriage (and key sponsors of the Federal Marriage Amendment), demonstrating that all of them fail to have a rationally secular relationship to banning same-sex civil marriage. I then apply the Lemon-endorsement test to the sectarian definition of marriage that same-sex marriage bans enshrine into the law, showing that a reasonable observer would conclude that such bans endorse one form of religious marriage over another, which creates a sizeable class of political outsiders and violates neutrality principles. In Part VI, I conclude that, if the Establishment Clause really means what it says, same-sex marriage bans impose and endorse one set of religious precepts regarding marriage, resulting in an unconstitutional establishment of religion. (19) I. DEFINING "MARRIAGE" A. A Brief History and Overview The idea that the state should--or even could--legally recognize same-sex relationships is relatively new. Baker v. Nelson, the first lawsuit seeking a marriage license for same-sex plaintiffs, was brought in Minnesota in 1971. (20) Although the Baker plaintiffs were unsuccessful, the case signaled to the nation that the modern gay-rights movement had marriage equality on its agenda. Many states began to assess the potential constitutional infirmities of their common-law definitions of marriage or antiquated marriage statutes. Consequently, some states affirmatively outlawed the legal recognition of same-sex unions through judicial flat, (21) statute, or state constitutional amendment. (22) The number of states outlawing these unions has grown substantially since 2003 when Massachusetts recognized same-sex marriage in Goodridge v. Department of Public Health. (23) The November 2006 election cycle alone saw voters weighing in on seven state-level constitutional amendments to prohibit same-sex marriage; six were ratified. (24) To date, Arizona is the only state in which voters have repudiated an attempt to amend a state constitution to ban same-sex civil marriage. (25) As of this writing, forty-five states have some form of a same-sex marriage ban on the books. (26) Five of these states nevertheless provide some legal rights to same-sex couples. (27) The remaining five states and the District of Columbia have not passed a statutory ban or a constitutional amendment. (28) Of these, Massachusetts is the only state to affirmatively recognize same-sex marriage; (29) courts in the other five jurisdictions have so far refused to force their respective legislatures to recognize civil marriage rights for same-sex couples. (30) No state allows marriages between more than two individuals. (31) Thirty-five years after Baker v. Nelson, (32) a majority of Americans still oppose allowing same-sex couples the right to marry. (33) However, a majority also believe that it is important to give same-sex couples some legal protections. (34) Moreover, the size of that majority is growing and has been for at least a decade. (35) Presumably, this is because more and more Americans are beginning to understand the hardship wrought upon gay and lesbian families who are denied the panoply of state and federal rights, benefits, protections, and responsibilities afforded by civil marriage. (36) If this liberalizing trend continues, a majority of Americans may soon come to believe that civil marriage should be made available to same-sex couples. At that time, we could expect that several jurisdictions might amend their definitions of marriage to permit same-sex civil marriage. But what is the definition of marriage? Why should we amend it? Why should we not amend it? In undertaking this inquiry, we immediately encounter difficulty. Currently, marriage is defined on both semantic and substantive levels. First, the semantic: Those opposed to giving same-sex couples access to marriage claim that, because marriage has only ever been between "one man and one woman," that this is all that marriage could ever be. (37) Tactically, this tautology is useful in deflecting criticism of an anti-same-sex marriage position, because it inevitably leads to a "yes it is, no it isn't" banter that distracts from the substantive issue at hand. Logically, however, this self-defining model of marriage is visibly undermined by its question-begging and circular reasoning. (38) By assuming the conclusion they wish to reach--that "marriage is marriage"--opponents of same-sex marriage have provided themselves with a pithy sound-bite--albeit one that fails to offer a substantive justification for itself. (39) As a lexicographical matter, the proposition "marriage is marriage" is inherently circular; it is impossible to divine the meaning of "marriage" without looking to sources of information beyond the word itself. Typically, however, opponents offer no additional normative reasons to explain why this definition of marriage is the only possible one, or for that matter, why any particular definition of marriage should remain static. Moreover, the factual claim itself--that marriage has always been between only one man and one woman--is only half true: Polygamous marriage models have existed in many non-Western civilizations throughout history, and several currently exist today. (40) Narrowing the "marriage is marriage" definition to encompass only Western civilizations--or only the United States--also fails: Before Utah joined the Union, the early Mormon Church openly practiced polygamy, which establishes that the proffered definition is premised on historical inaccuracies. (41) Moreover, polygamous sects in Utah and the surrounding areas persist today. (42) These brief analyses show why limiting our inquiry to only the semantic level proves unhelpful in discerning a normative definition of "marriage." Nevertheless, because the definitional argument is commonly encountered, it is addressed below in greater detail. (43) Same-sex marriage advocates (44) must sidestep this semantic quagmire and instead examine the substantive issues that give rise to our definitional crisis. For our purposes, a primary method of defining substantive marriage will be to identify and distinguish marriage's civil and religious aspects. This cannot be achieved without identifying exactly what marriage is designed to do--i.e., identifying the purposes it is intended to serve. We must keep in mind, however, that any purpose we identify must clear the constitutional hurdles designed to check unbridled majoritarian will. (45) We may not develop or implement a model of marriage that inherently violates the Constitution. (46) Opponents of same-sex marriage claim that marriage is instrumental in achieving ends that only opposite-sex couples can meet. (47) As such, we can characterize their preferred conceptions of marriage as very narrow. For example marriage is, according to opponents, designed to provide an "ideal environment" for raising children; by definition, this model must include only one father and one mother, whose "gender complementarity" will teach children proper sex roles within adult relationships. (48) This "ideal environment" is often said to be the best method by which social values and knowledge can pass between generations; ergo, the government should encourage "responsible procreation," or procreation within the confines of a pre-existing marriage. (49) Whether by chance or by design, same-sex couples fall outside this articulation of marriage--because same-sex couples are inherently monogendered, they cannot procreate without assistance, and they cannot provide children with both a "mother" and "father" in the classic sense. As a result, opponents conclude that marriage should not be made available to same-sex couples. Each of the opponents' arguments proceeds in a fashion similar to this one. By intentionally characterizing the purpose, nature, and function of marriage very narrowly, they are conveniently able to prevent same-sex couples from falling within the definition. Under this narrow sense of marriage, opponents thus conclude that marriage-qua-marriage cannot, by definition, be made available to same-sex couples, because "what they want does not exist." (50) Conversely same-sex marriage advocates take a broader view, frequently conceiving of marriage as a choice-based institution that is designed to allow individuals to make autonomous decisions as to partner, family structure, and effective methods of values-transfer to children. (51) Indeed, one of the primary rebuttals to the "ideal" environment characterization of marriage is the very existence of divorce--if marriage is truly only about providing a mother and father for as many children as possible, then governments should necessarily make it much harder for married couples (and particularly those with children) to obtain a divorce. (52) Moreover, if marriage were only about encouraging "responsible procreation," couples that are infertile, elderly, or who do not want children should not be permitted to marry at all. (53) Yet, such prohibitions do not exist and seem intuitively absurd--but why? If Supreme Court precedent is any guide, marriage has been substantively reconceived as a private-ordering system that is not expressly tied to procreation and child-rearing; (54) thus, it would appear that marriage-qua-marriage--at least as opponents have conceived of it--does not exist. (55) If this is indeed the case, then, as a friend of mine once said, "What's the big deal with letting two people own property together?" This definitional question has traditionally sounded in two constitutional doctrines: due process and equal protection. (56) It is important to briefly examine these doctrines before addressing the substantive Establishment Clause question, because the level of scrutiny and analytical methods employed in these areas will prove to be highly relevant. (57) First, the definitional question we face implicates "fundamental rights" under substantive due process. Opponents of same-sex marriage seek to define the right to marry very narrowly, while supporters seek a broader definition. (In other due-process cases, the outcome turned on whether the narrow or broad definition of the right prevailed, (58) just as it does here.) If a court construes the claimed right to marry narrowly, then same-sex marriage advocates have a difficult road to hoe: "[T]he right to marry someone of the same sex" (59) is not fundamental, because same-sex civil marriage is not "deeply rooted in this Nation's history and tradition;" (60) as a result, the government's interest in providing only opposite-sex couples with civil marriage receives rational-basis review. Analytically, same-sex marriage advocates are thus required to establish two propositions: (1) preventing same-sex couples from marrying is not rationally related to the state's interests in sustaining opposite-sex marriage and (2) allowing opposite-sex couples to marry is also not rationally related to the state's interests. Stated differently, same-sex marriage advocates are essentially required to establish that the state's purported interests in maintaining opposite-sex marriage are not legitimate. (61) This is very difficult for two reasons: (1) there are many reasons that governments have opposite-sex marriage, and courts will probably find at least some of them to be legitimate; and (2) it is more likely than not that courts will determine opposite-sex marriage rationally advances these interests. Of all courts-of-last-resort to review due-process claims for same-sex marriage, only Goodridge has held that the state's asserted interests did not survive rational-basis review tinder a due process claim; (62) this is partly because the Massachusetts Supreme Judicial Court construed the right in question to be "the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare." (63) No court yet has found a fundamental right to same-sex marriage per se. Second, our definitional question also raises equal-protection concerns. Laws that limit marriage to heterosexuals single out sexual minorities (64) for disparate treatment based on a single trait. If courts begin to find that sexual minorities--particularly homosexuals--comprise a suspect class, they would begin to undertake a heightened scrutiny of the classifications drawn by heterosexuals-only marriage laws. Technically speaking, having a heterosexual sexual orientation is not a prerequisite to marriage: As many opponents delight in noting, homosexuals remain free to get married--they just have to marry someone of the opposite sex. (65) Nevertheless, under heightened-scrutiny review, a court would examine the classification to determine what group is most likely to be disparately impacted by the law. Clearly, same-sex civil marriage bans have no legal effect on heterosexuals, who continue to enjoy the right to engage in a course of action consistent with the nature of heterosexuality: entering into a relationship with someone of the opposite sex and subsequently marrying that individual. But these bans have a substantial legal effect on homosexuals, who are prevented from engaging in a course of action consistent with the nature of homosexuality: entering into a relationship with someone of the same sex and then marrying that person. As a result, homosexuals as a class are prevented from engaging in a desired course of action based on a single trait, and the marriage bans that draw these classifications would face an uphill battle within a heightened-scrutiny regime. Unfortunately, the equal-protection heightened-scrutiny claim has not caught on in either federal or state courts. (66) As such, rational-basis review is currently all that is available for same-sex marriage advocates. Therefore, advocates must undertake an analysis similar to the one outlined above for due process. Essentially, they must establish that a heterosexuals-only definition of marriage irrationally discriminates against homosexuals as homosexuals. Said differently, advocates must establish that the state has no legitimate interest in excluding homosexuals from marriage when it makes marriage available to heterosexuals. Because marriage is, in due-process terms, an individually-based right and not a couple-based right, it makes sense to characterize the equal-protection claim here along the lines of sexual orientation--a classification based on sexual orientation impacts individuals and not couples. However, the equal-protection violation could also be characterized as challenging the disparate treatment of opposite-sex and same-sex couples. Regardless of how the argument is cast, the methodology of the rational-basis analysis remains the same. (67) All told, advocates have had more success making equal-protection claims than due-process claims: All courts that have ruled in favor of same-sex couples have invoked equal protection; these cases have universally resulted in civil unions. Only Goodridge resulted in "marriage," most likely because the Massachusetts Court also invoked due process; to date, it is the only court to have done so. Had Goodridge found only an equal-protection violation, the case might well have resulted in civil unions, just like the others. (68) As these brief discussions show, the definitional question can be resolved in favor of same-sex civil marriage within the scope of either doctrine: Under substantive due process, we must adopt a broad definition of the "right to marry," regardless of whether a fundamental right is implicated; under equal protection, we must identify homosexuals as a suspect class deserving of heightened scrutiny. In rarer instances--i.e., Goodridge (69) or Lewis (70)--we might determine that the state's interest is so lacking that neither of these actions is prerequisite to holding in favor of same-sex civil marriage or civil unions. The arguments for same-sex civil marriage are numerous, nuanced, and complex. Because I am not advancing a due-process or equal-protection argument in favor of same-sex marriage, rehearsing them here is not necessary. (71) For our purposes, it is important to keep in mind the courts' consistent application of rational-basis review and the accompanying analytical method. B. The Establishment Clause and Our Religious Heritage In our pluralistic society, religious beliefs and sectarian texts like the Bible are considered by many to be unacceptable grounds for developing generally-applicable social and political policy. (72) The Religion Clauses of the First Amendment reflect the Framers' understanding that, when society conflates worldly and spiritual authorities, it undermines both. Religions cannot flourish when subjected to governmental meddling, and republican governments cannot survive when they are hijacked by religious dogma. The English settlement of New England began as a direct result of religious persecution against the Puritan belief system; the Settlers' own experiments with religious governance showed that striving toward an ideologically-homogenous state led to dangerously unstable and tyrannical results--i.e., the Salem witch trials. Against this instructive history, the Framers drew the Religion Clauses to establish two primary goals: (1) keeping the government out of the pulpit (the Free Exercise Clause), and (2) keeping the pulpit out of the government (the Establishment Clause). The American legal system has historically assumed that there is no inherent Establishment Clause problem with the form of marriage it inherited from the English common law. (73) Indeed, advocates of same-sex marriage have brought an Establishment Clause claim in only one case, Dean v. District of Columbia [Dean I]. (74) It is ironic, then, that in dismissing the Dean I plaintiffs' challenge as "patently frivolous," the trial judge cited to the Bible and to specific Judeo-Christian beliefs regarding the immorality of sodomy and the sinfulness of possessing a homosexual status. (75) Unsurprisingly, the plaintiffs abandoned their Establishment Clause claim on appeal. (76) The Dean I trial court relied heavily upon the Supreme Court's cases Lemon v. Kurtzman, (77) McGowan v. Maryland, (78) and Bowers v. Hardwick. (79) The Court has subsequently altered both Lemon and McGowan since Dean I, and their applicability to First Amendment challenges has been largely supplanted by newer articulations of the constitutional values underpinning the Establishment Clause. (80) Moreover, Bowers was overruled explicitly in Lawrence v. Texas; (81) as a result, it is an outstanding question whether bare religious disapproval of homosexual conduct still constitutes a legitimate justification for reserving civil marriage to opposite-sex couples only. (82) No cases since Dean I have raised the Establishment Clause question addressed in this Article. Only recently have government officials (83) and commentators (84) begun to recognize the importance of separating church from state in the course of resolving the definitional crisis regarding marriage. American society and governments have historically--and in the past few years, deliberately--conflated civil marriage with religious marriage. In colonial times, English ecclesiastical marriage served as the model for what is frequently termed "traditional marriage." (85) Despite its religious moniker, ecclesiastical marriage was derived in part from the feudal system of property, by which parents arranged marriages between the children of similarly-stationed families in order to protect family interests in land. The church's role in marriage was twofold: (1) to provide a divine blessing for the marriage, and (2) to stand in loco gubernationis for the Crown, similar to how a modern-day state or federal agency governs under the auspices of its respective executive branch. As a result, the church served both religious and legal needs because the English monarchy had no administrative system akin to the modern American system. (86) With the rise of the American administrative state, the church found its role in the legal--or "civil"--part of marriage increasingly limited: Parties seeking only a "civil" marriage can circumvent the religious aspects of marriage entirely, as each state vests certain government officials with the power to solemnize a marriage. Religious leaders have retained the power to solemnize a marriage on behalf of the government--and legal presumptions favoring validity may arise as a result of a religious marriage ceremony--but the parties generally must file for a marriage license from the state before a marriage becomes fully valid. (87) Modern conceptions of what constitutes a "civil marriage" are relatively universal: "Civil marriage" occurs when the government recognizes the legal existence of a relationship between certain kinds and numbers of individuals, and as a result of that relationship, vests in those individuals a bundle of legally-enforceable rights, benefits, and responsibilities. Both opponents and advocates of same-sex marriage proffer definitions of marriage that fall within this generic teleological conception of marriage: What opponents of same-sex marriage call "traditional marriage" is the "one-man, one-woman" model of civil marriage that prevails in all jurisdictions save Massachusetts; as mentioned above, same-sex marriage advocates characterize civil marriage as a two-party, choice-based institution, regardless of the gender of the parties. Both of these definitions classify relationships along lines of quality (i.e., gender of the parties) and quantity (i.e., number of parties), (88) but they give a different weight to each of the factors. Advocates place almost no weight on the quality of the parties, while opponents give each factor equal importance. Religious notions of "marriage" vary widely and depend both upon the creed of the religious institution and upon the particular adherents. Teleologically, modern permutations of "religious marriage" range from two-party marriage (including same-sex marriage) to man-woman marriage (so--called "traditional marriage") to polygamy. Table 1 summarizes the positions of major American and world religions regarding the nature of marriage. This list of religious beliefs is far from exhaustive, and it is not intended to characterize non-Judeo-Christian faith communities one-dimensionally. It is indeed likely that theological and philosophical divisions exist within Buddhist, Islamic, and Hindu traditions that parallel the theological divisions among Jews and Christians over the issues of homosexuality and same-sex marriage. For our purposes, however, this table is sufficient to show that, both in America and worldwide, there is no religious consensus on the meaning of "marriage." Opponents of same-sex marriage have pointed out that, regardless of this diversity of belief, the vast majority of religious observers in America belong to groups that either oppose or are theologically suspicious of homosexuality and same-sex marriage. (89) Undoubtedly, the opponents' suggestion is that such an incredible majority of believers cannot be wrong about the meaning of marriage. While it is true that a huge majority of believers belong to faith traditions that profess belief in exclusively opposite-sex marriage, it is an oversimplification to assume that every believer within each one of those faith traditions also believes that same-sex religious marriage is theologically unsound. Such a suggestion belies the complexity of most faith systems and willfully mischaracterizes the ongoing theological shift occurring within several large, mainstream churches. Consider: the list of religious groups in the "Traditional Marriage" column is the largest of any column. However, a nearly-equal number of religious groups are listed in the "Traditional Marriage"-Plus column, and if we add in the number of religious groups in the Two-Party Marriage column, the total exceeds the number of groups listed in the first. Of the groups listed under "Traditional Marriage"-Plus, a significant number have simultaneously affirmed opposite-sex marriage and begun to grapple with the theological implications of same-sex marriage. This reveals that religious beliefs regarding same-sex marriage are neither static nor universally-held within a single faith system--in fact, a heated debate is currently taking place within major religious groups around the nation. (142) Finally, it is critical to understand that, just because a particular religious group rejects same-sex religious marriage, it does not necessarily follow that the group also rejects same-sex civil marriage. As mentioned above, some religious groups regard the legal right to marry as a civil or human right, regardless of their own beliefs about the morality or immorality of homosexuality. (143) Likewise, individuals within faith traditions are not of one mind--and as voters, they may vote against same-sex marriage bans as a matter of civic conscience, while simultaneously believing that homosexuality is sinful or theologically problematic. And what of non-theists? Secularists are found throughout America. By its nature, secularism rejects religion and mysticism, instead drawing upon philosophy and science as sources of personal morality. As a whole, Secularists favor same-sex civil marriage." (144) For comparison purposes, the beliefs of Secularists are laid out in Table 2. These tables are not an exercise in mere exhaustiveness--establishing the diversity of religious and Secularist opinion in America is central to the point. America's ongoing failure to distinguish religious from civil marriage has led to two constitutionally-impermissible results: (1) the government is allowing a majority of religious believers to impose a theological definition of "marriage" upon a significantly-sized minority of non-believers and different-believers, without offering a rationally secular justification for the mandated definition; and (2) by allowing this to occur, the government is endorsing the majority's definition of religious marriage, and as a result, has created a sizeable class of political outsiders who are being told that their religious beliefs are, at best, less-worthy than the majority's or, at worst, simply wrong. The Establishment Clause expressly forbids such explicit sectarianism. (151) II. A PRIMER ON THE FEDERAL MARRIAGE AMENDMENT AND ITS KIN A. What Are Same-Sex Marriage Bans and What Do They Do? Before we undertake our constitutional analysis, it is important to understand what same-sex marriage bans are and what they are intended to accomplish. Typically, same-sex marriage bans arise as either constitutional amendments or statutory revisions to pre-existing Marriage Acts, and they come in two general flavors: those that ban legal recognition of same-sex marriages performed in other jurisdictions--also known as Defense of Marriage Acts (152)--and those that permit only opposite-sex marriage to the exclusion of all others. (153) Many states that have adopted same-sex marriage bans have adopted both types. (154) Whether stated positively (e.g., "To be valid or recognized in this State [Alaska], a marriage may exist only between one man and one woman." (155)) or negatively (e.g., "Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina." (156)), the legal effect is the same: Same-sex civil marriage bans prohibit the legal recognition of any civil or religious marriage between persons of the same sex. Some bans go even further, prohibiting the creation of marriage-like legal arrangements or the conferral of marriage-like benefits (commonly referred to as "the legal incidents" of marriage). (157) These broad-based "legal-incidents" bans are even more sweeping than simple same-sex marriage bans: Whether by accident or by design, they bar same-sex couples from obtaining even marginal legal protections for their relationships. Proponents of "legal-incidents" bans claim that they are only intended to prevent legislatures and municipal governments from allowing same-sex couples to enter civil unions and domestic partnerships. (158) Despite this assertion, it is an outstanding question whether these bans potentially reach private relationship contracts, wills, and powers of attorney. (159) For example, Michigan's state attorney general recently determined that Michigan's constitutional amendment bars state and local governments from offering employment benefits to same-sex couples as domestic partners. (160) Similarly, Ohio's amendment has been read to bar unmarried heterosexual domestic-violence victims from bringing certain suits against their batterers in Domestic Violence Court, because standing to bring these claims is limited to persons in a legal familial relationship, which is only created through blood or marriage. (161) At the federal level, there is already a statutory ban on same-sex marriages: the federal Defense of Marriage Act (DOMA). Enacted in 1996, DOMA was codified in two separate titles of the United States Code. First, DOMA enacted a garden-variety ban on same-sex marriage by establishing a "one-man, one-woman" definition of marriage for the purposes of federal law. (162) Until DOMA, there had never been a federal definition of marriage; moreover, the Supreme Court has long recognized that the regulation of family law--including determining what constitutes "marriage"--lies beyond the reach of federal authority, instead falling squarely within the states' regulatory powers. (163) DOMA's second part purported to fashion an exception to the Full Faith and Credit Clause (164) by allowing states to refuse to recognize any same-sex marriage performed in another jurisdiction. (165) The constitutionality of DOMA has been the subject of much speculation and analysis. (166) The proposed Federal Marriage Amendment (FMA) is designed to preempt any constitutional challenges to DOMA. (167) The FMA is a "legal-incidents" ban that first appeared in 2002, when Rep. Ronnie Shows, D-Miss., introduced it to the Second Session of the 107th Congress as H.J. Res. 93. (168) In 2003, the 108th Congress saw H.J. Res. 56 (169) and S.J. Res. 26 (170) introduced in the First Session, by Rep. Marilyn Musgrave, R-Colo. and Sen. Wayne Allard, R.-Colo., respectively. Neither of these amendments got off the ground in a meaningful way. Since 2003, Rep. Musgrave and Sen. Allard have introduced five versions of the FMA, four of which have come up for a vote in their respective chambers. First among the subsequent versions was S.J. Res. 30, (171) introduced in the 108th Congress's Second Session. S.J. Res. 30 was replaced later on in the Session with S.J. Res. 40 ("Allard Amendment I") (172) and its companion bill in the House, H.J. Res. 106 ("Musgrave Amendment I"), (173) which were the first two versions of the FMA to come to the floor of either chamber. Neither S.J. Res. 40 nor H.J. Res. 106 passed its respective chamber with the requisite two-thirds majority. In the Second Session of the 109th Congress, renewed efforts to revive the FMA spawned S.J. Res. 1 ("Allard Amendment II") (174) and H.J. Res. 88 ("Musgrave Amendment II"). (175) Both S.J. Res. 1 and H.J. Res. 88 came up for a vote in their respective chambers and failed for a second time. (176) The versions of the FMA that concern us here are the four that came up for a vote on the floor of Congress. The Musgrave and Allard Amendments were virtually identical each time they were considered; Rep. Musgrave and Sen. Allard were joint co-sponsors of one another's proposed amendments. As a matter of interpretation, then, the legislative histories of these four versions of the FMA should and will be considered as a whole. To that end, when I refer to the FMA, I am referring collectively to these four proposals. B. Who Supports the FMA? Many individuals have testified in hearings before Congress in favor of the FMA. With only two possible exceptions (177) and one notable one, (178) every single one of these witnesses was a fundamentalist Christian, Mormon, or Catholic, each vested with strong religious credentials earned from years of working on behalf of fundamentalist religious causes. As discussed above in Table 1, all of the religious traditions to which these witnesses belong vehemently oppose homosexuality and same-sex marriage--and for explicitly religious reasons. Table 3 lists all of the witnesses who testified in favor of the FMA in congressional hearings. Interestingly, despite these witnesses' obviously religious viewpoints, each one employed a carefully-crafted non-religious vocabulary to advance the secular-sounding arguments dismissed below. (179) Couched in safe, secular-ish terms, each witness's arguments were cleverly--albeit transparently, to the keen observer--designed to mask the FMA's invidious purpose of imposing religious marriage onto an unsuspecting nation. It is impossible to rationally conclude that these witnesses had a genuinely secular purpose in mind or actually believed the secular implications of their testimony. How do we know this? Because of the strong religious pedigree of each of the witnesses. The idea that these individual witnesses--decidedly-religious, almost to a person--somehow prefer secular-ish conceptions of "traditional marriage"--a minority position among Secularists (180)--to their deeply-held religious beliefs again defies common sense. (181) Why then, if the supporters of the FMA are as staunchly religious as their credentials would lead us to believe, would they resort to arguing from a Secularist viewpoint? Only one Secularist, Stanley Kurtz, was put forward to lend credibility to the claim that the FMA is based on secular principles--and his consequentialist legal theories are so irrational and have been so heavily criticized (by writers on both ends of the political spectrum) that they are not creditable. (217) Instead, delineating the FMA's secular purposes was left largely to the say-so of numerous highly-religious witnesses. This is not to say that the mere presence of a creditable Secularist would cure the underlying constitutional infirmities of the FMA. Even if one were put forward, if there is no rational secular relationship between the purposes given for the FMA and the action that the law takes (banning same-sex civil marriage), (218) then no amount of secularist pontification would be able to justify it: The purpose of the law would still be religious, even if not on its face. Thus, it would be void under an endorsement analysis. (219) Still, why does this matter? Taking a page from the Establishment Clause's sister doctrine is instructive. When courts hear Free Exercise claims, they frequently inquire as to the sincerity with which the claimed adherents hold their beliefs. (220) And so it should be in the search for a secular purpose: Divining a secular purpose for a government action demands an inquiry into the sincerity with which its proponents believe the action to be genuinely secular. Merely claiming a secular purpose does not mean that one exists. If that were the rule, then the Establishment Clause would be undermined from within: Without a more searching inquiry, no court could ever discern an invidious religious purpose, as the central question is whether the claimed secular purpose is merely pretextual for a religious one. This has nothing to do with evaluating the content of one's beliefs and everything to do with whether actually believes that the claimed secular purpose is actually secular. If courts are competent to undertake inquiries into purpose at all, then they must necessarily be competent to determine whether the proponents of a law are subtextually motivated by religious beliefs. Finally, one might question my use of the FMA as exemplary of all same-sex marriage bans or as even relevant at all. Indeed, it may seem silly to evaluate the constitutionality of a constitutional amendment. However, because similar constitutional concerns exist for DOMA and for individual state bans on same-sex civil marriage (whether statutory or constitutional), the Establishment Clause discussion remains highly relevant. At the time of this writing, no new versions of the FMA have been introduced into the First Session of the 110th Congress. Nevertheless, if the opponents of same-sex marriage are true to their word, (221) efforts to amend the federal Constitution are far from over. Future Congresses will almost certainly face incarnations of the FMA that are essentially replicas of those that--so far--have been voted down. These yet-unwritten versions of the FMA will undoubtedly implicate the same Establishment Clause concerns that are addressed here. Barring a significant change in opponents' rhetoric, the so-called "secular" arguments used to justify prior bans will be recycled anew for the consideration of future legislators. Therefore, it is important to debunk these pretexual arguments now, to better equip same-sex marriage advocates for future debate and litigation. III. WHERE ARE WE GOING, AND WHY ARE WE IN THIS HANDBASKET?: A SHIFT IN FUNDAMENTAL(IST) RHETORIC "Overt bias, when prohibited, has oft-times been supplanted by more cunning devices designed to impart the appearance of neutrality, but to operate with the same invidious effect as before." --Judge Simon E. Sobeloff, in Griggs v. Duke Power Co. (222) Until recently, same-sex civil marriage advocates were entirely disempowered in their attempts to obtain any legal recognition of same-sex relationships. (223) While successes have come in fits and starts, with several key state court decisions being handed down recently and others on the way, (224) the legal recognition of same-sex relationships is in a state of constant flux and upheaval. Religion is playing a key role on both sides of the debate. (225) Historically, the Supreme Court has described marriage using explicitly religious language, portraying it as a "holy estate" (226) or "sacred precinct" (227) that could only be entered into by one man and one woman. Indeed, in early same-sex civil marriage cases, courts invoked similar language in determining that legal recognition of same-sex relationships was improper. (228) As discussed above, one trial court cited both the Bible and specific Judeo-Christian beliefs in disposing of a claim seeking same-sex civil marriage rights. (229) Currently, the proponents of same-sex civil marriage are not raising claims of any religious liberty interests. (230) Opponents of same-sex marriage are tiptoeing around the subject of religion, mostly claiming that allowing same-sex civil marriage would limit the availability of religious exemptions from anti-discrimination laws that protect homosexuals--said more plainly, opponents claim that allowing same-sex civil marriage will hamper Christians' ability to (1) publicly speak out against homosexuality and (2) act on those beliefs in a functionally-discriminatory way; therefore, their right to free exercise of religion trumps the government's interest in preventing invidious discrimination based on sexual orientation. While the religious-freedom claim is addressed more fully below, (231) it is important to note that, for the bulk of opponents, Free Exercise is the only context in which they currently appear comfortable advancing affirmatively religious arguments. (232) A. The Theoretical Underpinnings of Preservationism Over time, as American society as a whole has grown more tolerant--albeit not totally accepting--of homosexuality, (233) opponents of same-sex civil marriage have learned to couch their arguments in positive-sounding, seemingly unbigoted terms, and to decry any "hatred" or intent to "discriminate" against anyone's "lifestyle choices." (234) As a result, once overtly-religious rhetoric has been largely supplanted with what Prof. Edward Rubin terms "post hoc, secular-sounding argument[s]." (235) As Prof. William Eskridge has pointed out, this shift in language and tone does not show that the substance of the religious arguments has abated--instead, it indicates that anti-gay rhetoric and discourse has "sedimented," a process by which the old religious arguments have evolved to become more sophisticated and secular-sounding. (236) Describing the foundation of anti-gay rhetoric as "religious natural law theory," Eskridge notes that religion forms the bedrock for these newer, secularized arguments used to "promote" opposite-sex civil marriage. (237) This "sedimentation" has layered three distinct levels of anti-gay rhetoric upon one another, like a wedding cake: (1) the bedrock layer is "God's law," a religiously-derived form of natural-law theory that emphasizes the moral depravity of homosexuality, bolstering these claims with "objective" scientific data purporting to show that homosexuality and same-sex relationships are bad for society; (238) (2) the constitutional tier protects "normal" (239) (heterosexual) people's right to be free from exposure to homosexuals, because such exposure could make heterosexuals uncomfortable or corrupt their children; (240) and (3) the "no promo homo" frosting seeks to prevent any suggestion that the government "promotes" homosexuality as an "acceptable lifestyle choice"--particularly to children. (241) Eskridge concludes that the discourse has layered itself in this way in order to appeal to the broadest cross-section of anti-gay constituencies: (1) the religious fundamentalists who believe that Leviticus 18:22 (242) and 20:13, (243) and Romans 1:26-27 (244) should govern modern legal treatment of homosexual behavior and orientation; (2) the moral bigots who believe the various scientific claims--derived from religious natural-law theory (245)--that homosexuals and same-sex relationships are bad for society; and (3) the "normal people" who assert their collective "constitutional right"--typically claiming free exercise of religion (246)--to avoid exposure to homosexuals. (247) At the heart of this layered discourse lie two common elements: (1) religious belief and (2) the opinion that such beliefs should guide the government's treatment of homosexuals in the public sector. Prof. Reva Siegel takes a slightly different approach to conceiving the modernization of disempowering anti-minority rhetoric. Characterizing the phenomenon as "preservation through transformation," (248) she notes that "struggles over group inequality can transform the rules and reasons by which social stratification is enforced and justified." (249) Transformation occurs antiphonally: first, members of a disfavored minority--e.g., same-sex couples, or homosexuals generally--begin to successfully discredit the historical rhetoric used to justify their continued disempowerment. In response, the majority simply modernizes its justificatory rhetoric--often through the use of code words, (250) making only superficial adjustments to its excuses for discrimination. This serves to perpetuate the power imbalance without addressing head-on the substantive question of why the minority deserves to be disempowered--instead, it brilliantly smoothes over the conflict, leaving the majority comfortable with its newfangled explanation for why it should remain superior. When the minority realizes that, despite the facial shift in rhetoric, nothing of substance has changed, the cycle begins anew. This call and response continues ad infinitum until one of the following occurs: (1) the majority's arguments to support continued disempowerment eventually become so attenuated that they are no longer creditable; (2) the majority tires of the masquerade and ceases to engage in modernization; or (3) the majority actually liberalizes and decides that there are no longer adequate substantive justifications for continued disempowerment. Only then does equalizing change become possible. B. Preservationism: An Application A prime example of "preservation through transformation" and "sedimentation" is the veritable evolution of "creation science" into "intelligent design." In Kitzmiller v. Dover Area School District, a school board passed a resolution requiring teachers to read a statement offering "intelligent design" as an alternative "scientific" theory to evolutionary biology. (251) Several parents from the area challenged the resolution as an unconstitutional establishment of religion. (252) At the head of its analysis, the court traced the refinement of Fundamentalist rhetoric about evolutionary biology from the Scopes Monkey Trial (253) to the present day: During the Twentieth Century, as more and more public-school teachers and public-school systems eschewed blatantly-religious instruction in favor of teaching evolutionary biology in public-school classrooms, it became harder for the Fundamentalists to justify their desire for the teaching of facially-religious beliefs in public schools. In response, the Fundamentalists changed their rhetoric, but only incrementally, and only as much as was necessary to pass muster under ever-more-stringent constitutional standards. Most importantly, the underlying religious purpose never changed. (254) In Scopes, it was considered constitutionally permissible to bring a criminal prosecution for teaching evolutionary biology in lieu of biblical creationism. (255) Forty years later, in Epperson v. Arkansas, the Supreme Court struck down statutory prohibitions against teaching evolutionary biology in public schools. (256) In response, Fundamentalists began to advocate for laws requiring "balanced treatment" of biblical creationism and evolutionary biology--teachers wishing to teach evolutionary biology were forced to devote equal time to biblical creationism. This too, was struck down by the Sixth Circuit Court of Appeals in Daniel v. Waters. (257) In response, Fundamentalists began to reason that scientific-sounding language would help their religious purpose to survive constitutional scrutiny: hence "creation science." When, in Edwards v. Aguillard, the Supreme Court struck down a requirement that "creation science" be taught alongside evolutionary biology, (258) "intelligent design" was born. In striking down the Dover School Board's resolution as an unconstitutional establishment of religion, the Kitzmiller court recognized the evolution of the Fundamentalists' discourse for what it was: preservation through transformation. The Fundamentalists had simply layered new, scientific-sounding language over their previously-religious rhetoric, but the underlying message and purpose remained unchanged. As the evolution case reveals, Siegel's "preservation through transformation" formulation synthesizes with Eskridge's "sedimentation" theory rather nicely: When the disfavored minority empowers itself, the language used to perpetuate the minority's disempowerment transforms--or sediments--itself into a more politically-palatable rhetoric, while maintaining a broad-based appeal to a majority whose bigotry remains palpable. Both "preservation through transformation" and "sedimentation" have occurred throughout the debate over same-sex civil marriage. As it has become less fashionable to use expressly religious rhetoric to justify holding an anti-gay position, it has become more important for religiously-motivated opponents of same-sex marriage (259) to couch their arguments in secular-sounding terms. Currently, opponents rely mostly on social-science evidence and broader appeals to "morality"; express citations of religious doctrines are rare. Still, it is necessary for these religious believers to communicate with one another, so they have developed code words that signal a belief in the unstated--but ever-present--religious objective, which is to impose a specific religious definition of marriage on the entire nation. Catchphrases such as "traditional marriage," "ideal environment," "gender complementarity," and "values-transmission" abound. They are derived from the larger "family-values"-talk that permeates many religious spheres. However, because phrases like these straddle the line between sounding comfortably secular and signaling a religious objective, it is not always obvious when modernized anti-gay discourse is afoot. With experience, however, same-sex civil marriage advocates will learn to decode this rhetoric and expose the underlying religious objectives to all who would see them. The same-sex marriage debate is drenched with this "family-values" newspeak. I will refer to the tactical use of such modernized discourse as "preservationism." IV. MODERN ESTABLISHMENT CLAUSE JURISPRUDENCE: "HOPELESS DISARRAY" (260) "[W]e do not count heads before enforcing the First Amendment."--Justice Sandra Day O'Connor, in McCreary County v. ACLU (261) Before same-sex civil marriage bans can be properly analyzed under the Establishment Clause, it is important to ascertain the current constitutional landscape that applies to such bans. Identifying background principles that are universally agreed-upon has proven to be a Sisyphean task for the Supreme Court. For example, consider Everson v. Board of Education of Ewing, (262) the first modern-day case to discern a durable theory of the Establishment Clause. Everson presented a deceptively simple question: Is it an impermissible establishment of religion for a state to subsidize transportation for students attending certain private religious schools, but not all private schools, whether secular or religious? The Court voted 9-0 in favor of the now-famous "wall of separation between church and state" principle handed down by Justice Black. (263) All Justices concurred in Black's articulation of what might be described as basic neutrality rules: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State. (264) Even so, the Court divided 5-4 over whether the transportation program constituted an establishment of religion--the majority concluded that it did not, while the dissent concluded that it did. Why? Because the dissenting Justices had actually sought a more stringent set of neutrality rules than the ones adopted by the majority: The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion. (265) Regardless of which of these conceptions one prefers, it seems that the Court took a unified, aggressive stance in favor of the government remaining neutral in its treatment of religious affairs, both among religions and between religion and irreligion. Fast-forward to 2005. Heard, decided, and announced together, the twin cases of McCreary County v. ACLU (266) and Van Orden v. Perry (267) are the bellwether of present-day Establishment Clause jurisprudence. But simply put, the opinions are a mess. Like Everson, McCreary County and Van Orden also presented a deceptively simple question: In what context, if ever, is a government-sponsored display of the Ten Commandments on government-owned property constitutional? Said more broadly, where do we draw the line between displays that acknowledge America's religious heritage and those that actually "establish" religion? The Court answered the question two ways: The McCreary County displays were struck down while the Van Orden display was allowed. (268) The McCreary County displays were in two Kentucky county courthouses, (269) and the Van Orden display was on the grounds of the Texas State Capitol. (270) Although the specific context and background of each display varied, and the outcome of each case differed, the Justices generally wrote as if they were addressing a single case, rendering a total of ten opinions across the two cases: three in McCreary County and seven in Van Orden. (271) Of all that might be said about these cases, they begged for the Court to articulate a unifying principle and stick to it. In rendering their ten opinions, the Justices struggled to delineate an analytical method that was not susceptible of substantive criticism from the other side. Still, with Justice Breyer (272) and Justice Thomas (273) providing two notable exceptions, the Justices fell neatly across two interpretive schools: the Lemon-endorsement test and the historical-acknowledgement test. (The liberal wing of the Court applied the former, and the conservative wing of the Court applied the latter.) The tests are comprised of starkly contrasting analytical methods, which the Justices have drawn from their various schools of constitutional interpretation. Save for Justice Breyer's defection in Van Orden, a five-Justice majority emerged in McCreary County in favor of applying the Lemon-endorsement test. As discussed below, the Lemon-endorsement test was derived from the longstanding neutrality principles articulated in Everson. However, given the recent turnover of Justices, and most notably the replacement of Justice O'Connor with the decidedly more conservative Justice Alito, it is unclear whether the liberal wing of the Court will have the last word on resolving this doctrinal fracture. As such, it is important to at least identify the competing principles that caused the Court to fracture so badly in these cases. Thus, a portion of the following discussion will address the historical-acknowledgment test, despite the fact that for now, the Lemon-endorsement test is the controlling framework applicable to Establishment Clause claims. A. The Lemon-Endorsement Test: Context-Specificity and the Requirement of Government Neutrality Toward and Among Religions Over the last thirty years, various majorities of the Court have employed two tests in analyzing Establishment Clause questions: the "Lemon test" and the "endorsement test." Both of these tests are the direct offspring of the Court's longstanding recognition that the Establishment Clause calls for government neutrality both among religions and between religion and irreligion. (274) Over time, the two tests have merged into a single endorsement analysis steeped in neutrality ideals. 1. The Lemon Test The famous "Lemon test," announced in Lemon v. Kurtzman, (275) held that government actions are unconstitutional under the Establishment Clause (1) if they have no valid secular purpose, (2) if they have the effect of establishing religion, or (3) if they result in unnecessary government "entanglement" with religion. (276) Soon after the test was announced, the Court quickly qualified it, noting that the three factors are "no more than helpful signposts." (277) Over time, several members of the Court have criticized Lemon as unhelpful in analyzing certain Establishment Clause questions, and at times, the Court has simply not applied it. (278)) 2. The Endorsement Test As Lemon proved dissatisfying to more and more Justices, the "endorsement test"--in reality, a gloss on Lemon--became a more palatable alternative to some. Justice O'Connor originally postulated the test in her concurrence in Lynch v. Donnelly, (279) in part because the Lynch majority used the word "endorsement." (280) O'Connor subsequently codified the test in County of Allegheny v. ACLU, Greater Pittsburgh Chapter, (281) with five Justices signing on to its basic principles. (282) Essentially, the endorsement test asks whether a government action appears, to the reasonably informed observer, (1) to have the purpose or effect of (2) specifically endorsing or rejecting (3) a religion or a religious belief. (283) Under this articulation, the first prong of Lemon--valid secular purpose--is refashioned into a threshold question, and the third prong of Lemon--entanglement--is essentially discarded. The test also mandates that the government's action cannot render "adherence to a religion relevant in any way to a person's standing in the political community." (284) In County of Allegheny, O'Connor laid out the key values underlying the test: If government is to be neutral in matters of religion, rather than showing either favoritism or disapproval towards citizens based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community. An Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization, but fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. (285) Another way to lay out the test is to ask the following four questions: (1) As a threshold matter, is there a valid secular purpose for the government's action? If no, then the action establishes religion and is unconstitutional. (286) If yes, then we apply the following endorsement analysis. (2) To the reasonable observer, does the government's action have the purpose of endorsing a religion or religious belief? If yes, then the action endorses religion and is unconstitutional. If no, then (3) to the reasonable observer, does the government's action show favoritism to particular beliefs or convey disapproval to others, such that it has the effect of endorsing religion? If yes, then the action endorses religion and is unconstitutional. If no, then (4) to the reasonable observer, does the government's action either create a class of outsiders or render a person's religious beliefs relevant to her standing in the political community? If yes, then the action endorses religion and is unconstitutional. If no, then the action is constitutional. This series of questions synthesizes the basic elements underlying O'Connor's original endorsement test. The test was not immediately popular, and the conservative Justices never really signed on to it. (287) Additionally, the Court initially struggled to determine what specific knowledge is imputed to the "reasonably informed observer." (288) However, all Justices supporting the endorsement test agree that government actions "may not prefer one religion over another or promote religion over nonbelief," (289) which seems to be a reasonable position, considering the Court's longstanding precedent. (290) In McCreary County and Van Orden, the Justices began to synthesize the Lemon and endorsement tests within the broader framework of neutrality rules. In his McCreary County majority opinion, Justice Souter emphasized the values underpinning his dissent in Van Orden: (1) the impact of the display's religious content on the reasonable observer; (291) (2) the presence or lack of a larger coherent plan, of which the religious display constitutes but a part; (292) and (3) the significance or importance of the display's location, particularly when it is situated on civic or government property. (293) Souter also affirmatively embraced the neutrality principle in his own Van Orden dissent. (294) In McCreary County, Justice Souter placed additional weight on: (1) the coherence of the plan, (2) its original development and justifications, and (3) its subsequent evolution. (295) Thus, a critical infirmity of the McCreary County displays was that they were originally erected with an expressly religious purpose that was covered up in subsequent iterations of the displays but never repudiated. (296) As a result, Souter found the post-hoc secular justifications offered for the displays to be merely pretextual, reasoning that, if the government has nothing to hide, it should not need to change its justifications for an action after the action is challenged. When the government re-explains its purpose, it invites inquiry into its original purpose, motivation, or objective. (297) Justice Souter noted that "the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective." (298) The McCreary County majority took no position on whether this is a rational-basis standard or some form of heightened scrutiny. Certainly, the Court's language makes it seem reasonable to conclude that this test constitutes heightened scrutiny--e.g., "genuine," "sham," "merely secondary." However, the Court was unclear about whether the secular purpose must be express and easily-identified, or whether any conceivable secular purpose will suffice. It might assume too much to conclude that heightened scrutiny applies. Therefore, a rational-basis approach will be used for the substantive analysis below. (299) Finally, Justice Souter provided the Court with a satisfying description of the "reasonable observer," obtaining a five-Justice majority in support of the articulated definition. Accordingly, the reasonable observer: (1) is "presumed to be familiar with the history of the government's actions and competent to learn what history has to show;" (300) (2) is "familiar with implementation of government action;" (301) (3) inquires as to "'the historical context of the statute ... and the specific sequence of events leading to [its] passage;'" (302) and (4) is "'deemed aware of the history and context of the community and forum in which the religious display appears.'" (303) Concurring fully with Justice Souter's analysis in McCreary County, Justice O'Connor wrote separately to identify the greatest danger when governments endorse religion--namely, that the endorsement will unduly influence, deter, or restrict the free exercise of all religious adherents, even those who otherwise agree with the substance of the government's religious expression. (304) In his dissent in Van Orden, Justice Stevens's endorsement analysis focused primarily on the neutrality principle; (305) he invoked it in criticizing the fact that the actual text inscribed on the display placed "the State at the center of a serious sectarian dispute," because it made a definitive choice of language among the many available versions of the Decalogue. (306) Finally, Stevens aggressively touted neutrality ideals when rejecting Justice Scalia's "original meaning" position, (307) opining that Scalia's position "is plainly not worthy of a society whose enviable hallmark over the course of two centuries has been the continuing expansion of religious pluralism and tolerance." (308) While Justice Stevens's particular objection to the text of the Van Orden display garnered only the votes of himself and Justice Ginsburg, it leads to two instructive questions: (1) Does the government's action reveal that the state has taken one side in an ongoing sectarian dispute? (2) Does the government's action expressly or implicitly attempt to resolve the ongoing sectarian dispute? The answers to these questions seem relevant to addressing the broader issue of whether, even when the government did not have the express purpose of endorsing religion, the government's action has the effect of endorsing religion or of segmenting society into insiders and outsiders: If the government has taken a side in a sectarian dispute or attempted to resolve it, then necessarily, the government has chosen to lend its imprimatur to one set of religious beliefs over another. This effectively endorses the preferred belief system, which violates neutrality ideals by preferring one religion to another. B. The Historical-Acknowledgement Test: A Free Pass to Christian Majorities Like the liberals, the conservatives on the Court have combined two distinct modes of analysis in synthesizing what can only be characterized as an extremely deferential test. Grossly stated, the historical-acknowledgment test asks only whether the government action honors or acknowledges longstanding religious beliefs that have been held since the dawn of the Union. The only limit on this principle appears to be political will, which, in practice, supplies no meaningful constraint on these "acknowledgments." As a result, the test provides religious majorities--who, in America, happen to be Christian--with a free pass to concoct any "acknowledgement" they please, based primarily on the fact that they comprise the greatest number of believers in American society and always have. (309) Recognizing the infirmity inherent in this conception of the Clause, the conservatives valiantly attempted to fashion a limiting principle, but the result was much more lenient and religion-favoring than either the Lemon-endorsement test or any of the Court's previous rules. The historical-acknowledgment test limits the government's authority in the following way: The Establishment Clause is only offended when the government's action (1) has a religious purpose that extends beyond the scope of its secular purposes (310) or (2) requires or coerces nonbelievers into either professing adherence to a religious doctrine or participating in a religious ceremony. (311) 1. "Unbroken History": Chief Justice Rehnquist's Test Describing the Court's Establishment Clause jurisprudence as "Januslike," (312) Chief Justice Rehnquist cast the question before the Court as the need to navigate two lines of cases, one acknowledging the "strong role played by religion and religious traditions throughout our Nation's history," (313) and one recognizing that "governmental intervention in religious matters can itself endanger religious freedom." (314) Rehnquist stated that the best reconciliation between these competing values is one that "neither abdicate[s] our responsibility to maintain a division between church and state nor evince[s] a hostility to religion by disabling the government from in some ways recognizing our religious heritage." (315) In a footnote, Rehnquist repudiated neutrality ideals, asserting that "we have not, and do not, adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion.... Even the dissenters do not claim that [we must] forbid all governmental acknowledgements, preference, or accommodations of religion." (316) Technically, Rehnquist is correct, but only because he used absolutist language. Rehnquist's criticism of the neutrality principle is an attack on a straw man, because there is no genuine doctrinal dispute on this point: The Lemon-endorsement test neither bars any and all governmental preference for religion nor forbids all governmental acknowledgements of religion. No one questions that the government can acknowledge religion (i.e., by erecting holiday displays), (317) that it can prefer religion (i.e., by giving tax-exempt status to all religious organizations, regardless of their belief systems), (318) and that it can accommodate religion (i.e., by recognizing Christmas as a federal holiday). (319) As such, acknowledgments, preferences, and accommodations appear to be entirely permissible, provided they pass the basic neutrality test. Therefore, Rehnquist's characterization of the Court's neutrality precedent is simply incorrect, and his rhetorical sleight-of-hand fails: He is repudiating a position that no member of the Court appears to hold. The neutrality rule is not an absolute bar--instead, it is an inquiry as to whether the government's action has the purpose or effect of endorsing religion. This is a far cry from an outright ban on acknowledgment, preference, or accommodation. Nevertheless, to support his characterization of the Clause, Rehnquist proceeded to recount the "'unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789.'" (320) He also noted the role of functional acknowledgments or "ceremonial deism" encountered in several places in American government. (321) In applying this "unbroken history" test, Rehnquist characterized the displays as a "passive use" of the Decalogue, (322) noting that the government's interest in acknowledging the Commandments was coextensive--and therefore coterminous--with their religious significance. (323) Because of the potential that net-positive secular effects flow from the admonishments found in the Decalogue, Rehnquist ultimately concluded that the secular purpose behind posting it on the grounds of the Texas State Capitol grounds was at least as great as the religious purpose, and that the display was therefore constitutional. 2. The Framers and Original Meaning: Justice Scalia's Test Essentially, Justice Scalia sought to identify precisely what the Framers and Ratifiers intended the Establishment Clause to mean, paying specific attention both to their expressions of monotheistic beliefs at the time of the founding (324) and to the role of ceremonial deism throughout America's history. (325) Scalia angled to refute the neutrality principle by establishing that "the history and traditions" of the nation "reflect our society's constant understanding of" the Establishment Clause not as generally requiring neutrality among religions, and certainly not as requiring neutrality between religion and irreligion. (326) Paralleling Rehnquist's view, Scalia's conclusion seems to conflict with Everson and the Court's long-standing neutrality jurisprudence. (327) Nevertheless, Scalia sought to cast doubt upon the line of cases that announced and reaffirmed the neutrality principle, criticizing Lemon as "brain-spun," incapable of consistent application, and a "mistaken interpretation of the Constitution." (328) He subsequently offered up the proposition that an acknowledgement of religion is permissible when it either is constituted of "'beliefs widely held among the people of this country,'" (329) or is "recognized across ... a broad and diverse range" of religious groups. (330) He then argued that, when balancing "the interest of [a religious] minority in not feeling 'excluded'" with "the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors," courts should recognize that "[o]ur national tradition has resolved that conflict in favor of the majority." (331) Conceding that the foregoing analysis had failed to win over a sufficient number of Justices, Scalia argued that, if Lemon's secular-purpose prong is to be preserved at all, (332) the focus should remain on "the search for a genuine, secular motivation" and not turn into a "hunt for a predominantly religious purpose." (333) It is not clear whether Scalia conceives of this test as a form of rational basis or heightened scrutiny, but it is probably safe to assume that, given his willingness to let majorities erect almost any acknowledgement they please, Scalia conceives of it as a form of rational basis--and a highly-deferential one, at that. Furthermore, he proposed that any contextual inquiry should be presumptively satisfied if the religious portion of the display does not have "greater prominence" than the other portions, (334) and the reasonable observer could discern from the context that the entire display has a "purely secular purpose." (335) Scalia would not consider evidence of a prior improper purpose as "taint[ing]" a legitimate present purpose. (336) In conclusion, Scalia announced that he would affirm a display's constitutionality when (1) "[n]o one [is] compelled to observe or participate in any religious ceremony or activity," (337) (2) the government does not "contribut[e] significant amounts of tax money to serve the cause of one religious faith," (338) and (3) "[p]assersby who disagree with the message conveyed by th[e] displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech." (339) The conservative wing of the Court has struggled mightily to insinuate its deferential, religion-preferring historical analysis as the primary method of conceiving of the Establishment Clause. While the Lemon-endorsement test generally prevailed in McCreary County and Van Orden, the recent turnover on the Court probably means that neither side has been given the last word on the matter. Nevertheless, as the law stands today, the Lemon-endorsement test is the lens through which we must critically evaluate same-sex marriage bans. V. DO SAME-SEX MARRIAGE BANS PASS MUSTER?: APPLYING THE LEMON-ENDORSEMENT TEST The analysis of same-sex civil marriage bans occurs in two major steps. First, a secular purpose must be identified. Without one, the bans cannot withstand constitutional scrutiny. As we will see, even under a rational-basis conception of the secular purpose requirement, some of the so-called secular purposes given for same-sex civil marriage bans are decidedly religious, while others lie on such unstable logical foundations that, while the proffered justifications may be secular purposes in and of themselves, none of them is rationally related to banning same-sex civil marriage. Even conceding for the sake of argument that some yet-unidentified secular purpose is out there, the analysis is incomplete. The second step is to apply the endorsement test's three remaining questions: To the reasonable observer, does the government action have (1) the purpose or (2) the effect of endorsing religion, and (3) does the action render a person's religious beliefs relevant to her standing in the political community? As we will see, even assuming a secular purpose, the preservationists' preferred definition of marriage cannot pass the endorsement analysis. A. The Search for a Secular Purpose: Evaluating the Arguments Against Same-Sex Civil Marriage "[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose." --Justice Tom C. Clark, in School District of Abington Township v. Schempp (340) We must first determine whether the proponents of banning same-sex civil marriage have articulated a non-pretextual, genuinely secular interest for doing so. Without one, such bans are unconstitutional establishments of religion, rendering the inquiry complete. This inquiry is far-ranging and relatively extensive, because it requires us to undertake a critical evaluation of the logical and secular foundations of the justifications offered for bans on same-sex civil marriage. Our search is for a purpose that is "genuine, not a sham, and not merely secondary to a religious objective." (341) As such, we are permitted to pierce the veil of pretextual obfuscations designed to mask an invidious religious purpose--genuine-ness cannot be determined otherwise. (342) The following analysis relies primarily on the arguments advanced in favor of the Federal Marriage Amendment (FMA), which are found in its legislative history and hearing transcripts. I have supplemented a handful of these arguments with statements written by several individuals who testified in favor of the FMA, as they are helpful in unpacking their claims. I assume for the ease of argumentation that the arguments raised and dismissed here are the same ones used to justify statutory and constitutional bans that have been enacted at the state level, and that therefore, those bans would suffer the same constitutional infirmities that exist within the FMA. 1. The Federal Defense of Marriage Act (DOMA), Social Science, and a Bit of History In 1996, DOMA was passed with great religious fanfare, and supporters of the law did not hesitate to trumpet its explicitly religious underpinnings. (343) The proponents of DOMA used religious beliefs about the immorality of homosexuality as a justification for blatant gay-bashing. In light of DOMA's undeniably religious background, some commentators have argued that DOMA is an unconstitutional establishment of religion. (344) Fast-forward to the present day. While explicitly religious arguments against homosexuality were used to support DOMA, (345) there is a near-complete absence of such anti-gay religious rhetoric used to justify the FMA. (346) The preservationists only mention religion in two contexts: (1) religious freedom (347) and (2) the definition of marriage. (348) While the FMA has the consequential effect of legitimizing discrimination against same-sex couples, it does not have the express purpose of doing so. (349) The lack of a facially-discriminatory purpose lends an air of credibility to the arguments favoring the FMA, despite their subtextual religiosity. This is a remarkable modernization of discourse: The lessons of history have truly "channeled" the preservationists' once-religious anti-gay arguments into more tolerable, secular-sounding ones. (350) What happened? The preservationists have not abandoned their religious principles. Instead, they have turned to using pseudo-secular justifications and obfuscating free-exercise claims as cover for insinuating their religious beliefs into the law. Secularization of religious preservationism is not costless. For example, a truly "fundamental" tenet of fundamentalist religious beliefs is proselytization and conversion. (351) As such, it is consistent with preservationist values to conclude that imposition of their religious beliefs on American society is a paramount goal. (352) Preservationists ardently decry the secularization of America, (353) vigorously claiming that America is a Christian nation founded on Christian beliefs. (354) As such, a number of well-funded and highly-influential preservationist organizations have begun to vigorously advocate for explicitly Christian social and legal policies. (355) The FMA is one of those policies. (356) Nevertheless, preservationists may not openly evangelize through facially sectarian laws, as this would violate the Establishment Clause outright; as such, they have had to make certain compromises of principle in obtaining their religious objective. Now, instead of making blatantly religious arguments, preservationists carefully couch their justifications in terms that are just secular enough that their invidious religious purpose is not revealed. As a result, preservationists have found some strange bedfellows in secularism. (357) Moreover, making secularized arguments has required preservationists to stake out some intractable scientific and sociological positions against homosexuality, same-sex relationships, and same-sex parenting. (358) Over the last several decades, scientific evidence has mounted that homosexual sexual orientation is a benign variation of human sexuality, probably caused by genetics, immunology, endocrinology, or a combination of these. (359) Moreover, many scientists have affirmed that, regardless of the origins of homosexuality, sexual orientation is fixed by an early age and is not the product of an individual choice. (360) Attempts to change an individual's sexual orientation from homosexual to heterosexual are generally viewed as psychologically harmful. (361) Same-sex couples have also been shown to be effective, loving parents capable of raising well-adjusted, productive children. (362) Faced with mounting scientific evidence against their anti-gay position, preservationists can only prevail if they rely on scientific arguments and research about homosexuality that rest on factual conclusions directly contrary to those consistently found by mainstream scientists. This research usually comes in two flavors: conversion therapy and homosexual parenting. First, in the context of "conversion therapy"--a process by which (it is claimed) that homosexuals can become heterosexual (363)--preservationists have created an entire lobby of researchers whose outcome-determinative social-science evidence is manufactured to conclude that (1) homosexuality is a choice, (2) homosexuals who refuse to attempt to convert to heterosexuality are doomed to a life of misery, and (3) there is no need to give homosexuals any civil rights, because with enough willpower (and religiosity), they can always repair their brokenness. (364) Scientists have continually debunked these studies, demonstrating that they are based on unsound scientific principles and conducted using faulty research methods. (365) Second, we have briefly noted the scientific evidence in support of homosexual parenting; (366) nevertheless, preservationists persist in claiming that homosexual parenting is dangerous for children. (367) I do not wish to delve deeply into the arguments for and against homosexual parenting; because the documented, positive effects of homosexual parenting do not enjoy the same longitudinal credibility as several thousand years of recorded heterosexual parenting, it is unlikely that the debate over homosexual parenting could be resolved within these pages. For our purposes here, it is enough to show that science has not provided us with a conclusive answer either way. As such, we seem to be mired in an intractable "war of the studies": Because science may never conclusively establish either the genesis of homosexuality or the effectiveness of conversion, or the effects of homosexual parenting on children, the preservationists get away with citing social-science evidence that is anti-gay, outcome-oriented, and patently non-objective. As a result, they have left no room for meaningful argumentation and dialogue based on nonpartisan, unbiased scientific research. Instead, advocates on both sides can only engage in a fruitless back-and-forth about whose evidence is more credible or accurate. (368) Despite the universally-positive support for same-sex civil marriage coming from the mainstream scientific and mental-health community, (369) opponents of same-sex marriage persist in manufacturing incredible, specious research to justify their anti-gay position. Because neither side appears to have gained the upper hand in this battle, (370) I will, for the purposes of this analysis, disregard all social-science evidence about conversion-therapy and homosexual-parenting as being non-authoritative. This certainly renders it more difficult to dispose of the preservationists' arguments, but it does not render the task impossible. To paraphrase Justice Breyer in Van Orden, nothing can adequately replace the exercise of sound legal judgment. (371) 2. Why We Have Opposite-Sex Marriage: Circularity, Question-Begging, and a Pound of Logic Preservationists rehearse several arguments about the nature of marriage to justify their position against same-sex civil marriage. As we will see, none of these arguments possess either a genuine or a rational secular relationship to banning same-sex civil marriage. This is not to say that there are no genuinely secular reasons whatsoever for having opposite-sex marriage; indeed, most of these arguments are outstanding justifications for having opposite-sex marriage. These "pro-marriage" arguments actually constitute a sedimentation of discourse: Instead of arguing against same-sex marriage, preservationists are now arguing for opposite-sex marriage. This is a brilliant tactical move, because it serves as convenient cover for their anti-gay purpose: Whenever someone says, "But you're being discriminatory!," the preservationists can simply respond, "Ah, but no! We just love marriage, that's all!" While this obfuscation may be strategically useful, such empty cheerleading serves only to distract--after all, who isn't for "marriage"? (372) Isn't "marriage," indeed, the very thing that we are fighting about? Both sides are for "marriage"--it is disingenuous for one side to attempt to claim the moral high ground about the matter. As we see, the question before us is not why we should have opposite-sex marriage. Rather, the question is why we should have opposite-sex marriage but not same-sex marriage. Therefore, the constitutional inquiry is whether there is a rational relationship between the proffered secular purpose and the government action in question, viz., a ban on same-sex civil marriage. Several of the arguments are based on two instrumentalist assumptions and a conclusion: (1) opposite-sex marriage serves purpose X; (2) same-sex marriage does not serve purpose X (and in fact, might harm it); and therefore (3) marriage should not be made available to same-sex couples. While these arguments appeal to many unquestioning lawmakers and voters, it is important to explore exactly what is illogical about them. Exposing the irrationality of these arguments will inform the rest of the discussion. As an initial matter, all advocates for marriage make arguments that favor having marriage in the first place. In responding to the question, "what kinds of relationships should be included in legal marriage?," advocates on both sides generally proceed on the following syllogism: First Major Premise = Legal marriage should include relationships that serve purpose X. First Minor Premise = Purpose X is served by attribute A. Second Major Premise = Purpose X is served by attribute A. Second Minor Premise = Attribute A exists in Y-type relationships. Second Conclusion = Therefore, purpose X is served by Y-type relationships. First Conclusion = Therefore, legal marriage should include Y-type relationships. Note that the term Y-type relationships is broad enough to encompass both same-sex and opposite-sex relationships; thus, both narrow and broad definitions of marriage (373) fit within this syllogism. However, because preservationists object to same-sex marriage on substantive grounds, they change the syllogism slightly, basing their arguments on a narrower iteration: First Major Premise = Legal marriage should include relationships that serve purpose X. First Minor Premise = Purpose X is served by attribute A. Second Major Premise = Purpose X is served by attribute A. Second Minor Premise = Attribute A exists in Y-type relationships. Third Major Premise = Attribute A exists in Y-type relationships. Third Minor Premise = Y-type relationships include only opposite-sex couples. Third Conclusion = Therefore, attribute A only exists in opposite-sex couples. Second Conclusion = Therefore, purpose X is only served by opposite-sex couples. First Conclusion = Therefore, legal marriage should only include opposite-sex couples. The fallacy with this syllogism is that one of the syllogism's terms is self-defining: The Third Minor Premise begs the question of why Y-type relationships include only opposite-sex couples. This flaw in reasoning means that none of the syllogism's subsequent conclusions are informed by actual arguments--the series of conclusions become mere restatements of the question. For example, nothing within the syllogism explains why (1) non-opposite-sex couples don't possess attribute A (the Third Major Premise, leading to the Third Conclusion), (2) purpose X cannot also be served by relationship attributes other than attribute A (the Second Major Premise, leading to the Second Conclusion), or (3) purpose X is the only reason to have marriage in the first place (the First Major Premise, leading to the First Conclusion). These infirmities constitute the very substance of the due-process and equal-protection claims described above (374)--they go to the heart of what marriage is, which, as a legal matter, seems reducible to the purposes and attributes in play in the syllogism. Same-sex marriage advocates face significant challenges in explaining why, under this syllogism, it is irrational to restrict marriage to opposite-sex couples only. Indeed, under rational-basis review, opponents of same-sex marriage can win this argument without expressly concluding that governments should ban same-sex marriage. As revealed in Hernandez v. Robles, (375) all a government must do is to establish why it makes marriage available to opposite-sex couples; it need not advance an affirmative argument against same-sex marriage--under rational-basis review, the point is to advance the interest somewhat, even if imperfectly. (376) Given that opposite-sex marriage usually serves purpose X somewhat, a restriction (due process) or classification (equal protection) based on purpose X will probably pass muster. So far, same-sex marriage advocates have prevailed only when the reviewing court determined that legal marriages may serve purposes other than purpose X or possess attributes other than attribute A. Said differently, advocates have only won when the reviewing court broadened the nature of the right. Such broadening truly constitutes the redefinition that preservationists so desperately seek to foreclose. Lest these arguments distract us: our challenge vis-a-vis the Establishment Clause is to discern what secular reason exists for concluding that, because same-sex marriage does not possess the attributes of opposite-sex marriage, a government should be prohibited from granting such marriages. The syllogism in play here is the following: First Major Premise = Legal marriage should include relationships that serve purpose X. First Minor Premise = Purpose X is served by attribute A. Second Major Premise = Purpose X is served by attribute A. Second Minor Premise = Attribute A exists in Y-type relationships. Third Major Premise = Attribute A exists in Y-type relationships. Third Minor Premise = Y-type relationships include only opposite-sex couples. Third Conclusion = Therefore, attribute A only exists in opposite-sex couples. Second Conclusion = Therefore, purpose X is only served by opposite-sex couples. First Conclusion = Therefore, legal marriage should only include opposite-sex couples, and we should also ban legal recognition of all other relationships. Preservationists have extended the logical conclusion of the syllogism to include something--i.e., we should ban same-sex marriage--that the syllogism's propositions do not rationally support. It is insufficient to simply say that opposite-sex marriage and same-sex marriage are different. Saying that opposite-sex marriage is better than same-sex marriage is a value judgment that requires a rational--and, as we will see, permissible--basis. Saying that "marriage is marriage" does not answer the question, "What is marriage?"; it merely repeats it in the form of a conclusion. As mentioned, it is one thing to say that opposite-sex marriage should exist and to advance arguments in favor of having opposite-sex marriage. It is quite another to say that opposite-sex marriage should exist to the exclusion of same-sex marriage. This last shows that the claimed rational relationship between the First Major Premise and the First Conclusion has broken down. I call this the "Conclusion-Plus" fallacy: Preservationists are relying on something beyond the syllogism to justify the second half of the First Conclusion--banning same-sex marriage. The proposition that same-sex marriage should be banned merely because society benefits from having opposite-sex marriage cannot be logically derived from anywhere within the syllogism. Where, then, does the "Conclusion-Plus" proposition come from? It primarily derives from religious beliefs about the immorality and spiritual dangers of homosexuality. Logically, the fallacy undermines the necessary rational relationship between the asserted government interest and the means used to serve that end; constitutionally, the religious beliefs undermine the necessary secular purpose. As we will see, then, the preservationists have failed to rationally articulate secular justifications for banning same-sex marriage. a. A Brief Summary of the Arguments This section briefly identifies the primary arguments--state interests, really--raised in favor of the FMA and same-sex marriage bans generally. Table 4 groups the preservationists' propositions by topic--for comparative purposes, I have provided a key logical rebuttal to each argument. (377) Rehearsing these arguments is not just a dry exercise in philosophizing. Note that a same-sex marriage ban serves the stated interests extremely poorly, if at all. As a result, we face the inescapable implication that the stated interest is not the true interest. First, each one of these propositions--with the possible exception of Proposition C (378)--is a rational reason for having opposite-sex marriage. Yet, without more information, we cannot establish a rational link between the claimed interest and banning same-sex civil marriage. As such, none of these interests constitute convincing reasons for adopting the FMA. Second, each one of these propositions fills its purpose imperfectly; ostensibly, then, the FMA would perfect the interest, or at least to bring us closer to perfection--right? Well, no. As we will see, same-sex marriage has nothing to do with perfecting the interest. Instead, we would have to change something about the laws governing opposite-sex marriage. For example: 1. If the purpose of opposite-sex marriage is to encourage opposite-sex couples to procreate, then only opposite-sex couples who are willing and able to procreate or, if infertile, willing to adopt--should be allowed to marry, and married couples should not be permitted to use contraception. 2. If the purpose of opposite-sex marriage is to ensure that as many children as possible grow up with a married mother and father, then married couples with children should find it harder to obtain a divorce. 3. If the purpose of opposite-sex marriage is to encourage "reproductive meaning" through penile-vaginal intercourse--thereby maintaining a "procreative orientation" within the marriage, then married couples should not be permitted to engage in non-vaginal intercourse or vaginal intercourse with contraception. I will not run through the various permutations ad absurdum. These examples are sufficient to show that, aside from banning same-sex marriage, there is a rational way to advance all of the interests outlined in Table 4--a rational way that no one wants to talk about! But according to the strictures of rational-basis review, merely identifying these alternative means of advancing the interest is not enough: We must also show that, because banning same-sex marriage bears such a highly-attenuated link to the interest itself, it is irrational to conclude that banning same-sex marriage advances the interest at all. In undertaking this analysis, we will discover that the preservationists are citing these interests to cover up an invidious religious purpose. It is identifying and dissecting this purpose to which we now turn. b. Identity Politics and the Definition of "Marriage" Preservationists frequently claim that the "one-man, one-woman" model of marriage should be "protected" from "redefinition," (389) because the man-woman paradigm has always been the only possible definition of marriage per se. (390) The definitional argument was briefly discussed above, (391) but it is worth revisiting here in greater detail. The argument is a clever attempt to fix the meaning of marriage as an arrangement reserved exclusively for opposite-sex couples before any subsequent discussion takes place. (392) However useful such an argument might be rhetorically, the statement "marriage is marriage" fails logically because it is tautological: By claiming that a same-sex marriage, by definition, could never exist, preservationists have sidestepped the question ("Is marriage only between one man and one woman?") by repeating it as a conclusion ("Marriage is only between one man and one woman."). No attempt is made to explain why "marriage is marriage." Thus, the definitional argument, while tactically useful, is an unsatisfying response to the question, "what is marriage?" To take on one of the more colorful iterations of the definitional argument, Jeffrey Ventrella of the Alliance Defense Fund once wrote that, "without onions, [onion rings] cease to be onion rings. In the same way, marriage ... consists of two--and only two--persons [in] the union of a male and a female. Absent these essential components, the social construct ceases to be a marriage." (393) The argument, in essence, is that X = X. This is undoubtedly true. But it is also mathematically possible that X = Y. It is this second equation that represents the root of our definitional crisis. In response to the possibility that X = Y, preservationists reply that, if the syllogism x = marriage, and marriage = one man + one woman, ergo X = one man + one woman is true, then the syllogism x = marriage, and marriage = one woman + one woman, ergo X = one woman + one woman could not also be true. At first blush, one man + one woman ,, one woman + one woman seems to be logically correct. But is it? What, other than a bare dislike of one woman + one woman, makes it logically--or, more precisely, legally--impossible for one man + one woman = one woman + one woman? Is it really beyond dispute that, given the existence of gender dysphoria, intersexuality, and transgenderism, the terms "man" and "woman" are impervious to multiple interpretations? It seems quite possible that the actors in our math-play are legally fungible: Since it is legal for one man to marry, over the course of a lifetime, many women (albeit one at a time), it is hard to imagine why, without more, he could not also marry many men in the course of that same lifetime. (Remember, the syllogism does not say "marriage = only one man + one woman.") If, as a matter of constitutional law, there are precious few areas in which women and men can be adjudicated to be inherently unequal, (394) then it is unclear from the definitional argument exactly why or how one man + one woman is not the legal equivalent of one woman + one woman. Arguing from essentialism gets us nowhere, because we haven't yet established that one man + one woman > one woman + one woman, or why, even if that is true, such an imbalance justifies banning one woman + one woman. I am not arguing that the definitional argument is wrong. But to determine that it is right, we need more information than the argument is willing to give. Returning to the "onion rings" metaphor, we are thus left not with a discussion of the necessary ingredients to create an onion ring, but instead with the more basic question, "what is an onion?" Certainly, what an onion is cannot be without limit. (395) However, defining the outer limits of the onion necessarily requires an inquiry beyond the onion itself. It seems that Ventrella's argument is unassailable, not because it is correct, but because it is premised on faulty logic: Major Premise = The onion is what it is. Minor Premise = The onion has always been what it is. Conclusion = Therefore, what the onion is cannot be questioned. A more impenetrable tautology there wasn't yet. Preservationists also find cold comfort in history: Governments have continually redefined what constitutes a valid "marriage"; (396) this means that marriage has never been--and is not now--an institution with a static definition. Claiming that one definition of marriage is the only possible definition, despite evidence to the contrary, is a factually-unsupportable proposition. For historical evidence that marriage in America has included arrangements beyond "one-man, one-woman" marriage, one needs to look no farther than Mormon polygamy in the late 1800S. (397) Concededly, Mormon polygamy always occurred within the confines of a man-woman paradigm. Some preservationists seize upon this fact to claim that comparisons to polygamy are inapposite--some preservationists even claim that, because polygamous marriages are bi-gendered, they would support polygamy over same-sex marriage. (398) Logically, however, polygamous marriage cannot simultaneously support and subvert the preservationists' preferred definition of marriage. According to the teleological argument against same-sex marriage, marriage is as necessarily bi-nary as it is bi-gendered. (399) Moreover, when preservationists invoke the "slippery slope," polygamy is cited as the very thing that they wish to avoid. (400) It is a logical contradiction to say both "I am against proposition X because it leads to bad consequence Y" and "I prefer bad consequence Y to proposition X." Bad consequence Y is either worse than proposition X or it is not. It is therefore logically inconsistent for preservationists to claim that polygamy's bi-gendered nature supports their definition of marriage while also claiming that polygamy's multi-nary nature opposes their definition of marriage--polygamy either subverts the preservationist definition of marriage or it does not. Said in the reverse, preservationists either oppose polygamy or they do not. They cannot logically have it both ways. Despite its faulty logical foundations, the definitional tautology undergirds the preservationists' frequent appeals to identity politics. Many preservationists claim that gay and lesbian individuals have not actually been deprived of their right to marry, because they can simply "choose" to marry an individual of the opposite sex. (401) This argument concedes that something has to change before the definitional crisis can be resolved--the question is what or whom. It assumes that homosexuals are merely being obstinate about who they wish to marry, and so the definition of marriage need not be changed to accommodate their "trendy preferences." (402) Identity-politicking serves two useful purposes for preservationists: (1) refuting claims of sex discrimination and (2) questioning the notion that homosexuality is a sufficiently immutable characteristic as to merit heightened constitutional protection. First, there is a meaningful argument that same-sex marriage bans constitute unconstitutional discrimination based on sex. Grossly stated, the argument is this: (1) marriage is, after Loving, Zablocki, and Turner, an institution that affirms individual autonomy and decisionmaking vis-a-vis choice of partner; (2) bans on same-sex marriage are a restriction on individual autonomy, because they do not permit individuals to marry their choice of partner; (3) the restriction on individual autonomy is based on the sex of the individual who seeks to enter marriage (this renders irrelevant questions of class-based harms--i.e., harms to men or women as discrete groups); (4) because same-sex marriage bans draw lines based on gender, they thus require an "exceedingly persuasive justification"; (403) and (5) same-sex marriage bans do not survive this heightened scrutiny. (404) This claim renders the claimant's sexual orientation to be irrelevant, because having a particular sexual orientation is not a prerequisite to marriage. The claim succeeds or fails on whether the restriction is conceived of as working an individually- or group-based harm. If the restriction is conceived of as against the individual, the claim succeeds, because the individual's autonomy is diminished based on her sex. If the restriction is conceived of as against an entire gender, the claim fails, because the legal handicap is the same for both genders, and it is generally-applicable to everyone--the restriction diminishes the autonomy of 100% of the population, so the persuasive force of any one individual's claim is undermined. Preservationists, predictably, take the position that homosexuals remain subject to the same gender-based line drawing that applies to heterosexuals, so no sex-discrimination claim can be stated. Identity-politicking helps in this regard, because it paints with a broad brush, delineating homosexuals as part of the larger class of males and females, not as individuals who, although similarly situated, are not permitted to marry the person of their choice solely on account of their individual genders. Second, and more invidiously, the assertion that homosexuals can always choose to marry someone of the opposite sex is subtly intended to imply that sexual orientation is not a "choice"--at least not in the classic sense (405)--and therefore it is not deserving of heightened protection or scrutiny. While not directly related to the "definition" of marriage, this invocation of identity politics is deliberate and definitional--it intentionally questions whether a homosexual orientation results from nature or from choice. It is important to remember that religions--preservationists included--are not of one accord regarding the origins or moral consequences of homosexuality or homosexual behavior. (406) For preservationists, there are two general schools of thought in this regard. One school believes that homosexuals (but curiously, not heterosexuals) have affirmatively chosen their sexual orientation, and that they have chosen incorrectly. (407) This is the "reparative" school, and it is largely Evangelical. This school believes that a homosexual orientation can--and should--be changed to a heterosexual one through therapy and religious indoctrination. (408) This belief is derived largely from the Bible passages that condemn homosexual behavior, (409) and it drives the belief that homosexuals suffer from a sinful, unrepentant failure to choose the proper sexual orientation: heterosexuality. The other school holds that the genesis of homosexuality is irrelevant--this is the "behavioral" school, which believes that, although homosexual behavior is sinful, homosexual desires are not. Accordingly, the story goes, even if an individual does not choose a homosexual orientation, and even if that orientation is immutable, individuals can choose whether to act on their homosexuality. (410) The Roman Catholic Church is the largest proponent of the "behavioral" school; unlike the Evangelical ministries, it does not aim to "change" an individual's sexual orientation from homosexual to heterosexual--the goal instead is to encourage homosexuals to live a life of chastity and spiritual purity. (411) Regardless of which school one follows, it is the underlying religious belief about the immorality of homosexuality that preservationists seek to insinuate into the law through same-sex marriage bans. One theory is that banning same-sex marriage can actually incentivize heterosexuality: Because a ban on same-sex marriage will perpetuate heterosexual privilege in both law and culture, it might have the derivative effect of turning some homosexuals into heterosexuals, or at least of encouraging them to remain sexually chaste. (412) It is tempting to dismiss this claim as hogwash, but there is something to it: If a government can rationally determine that opposite-sex marriage is, on balance, better than same-sex marriage, (413) then there is little to stop it from rationally determining that heterosexuality is, on balance, better than homosexuality--right? Well, not exactly. While rational-basis review may theoretically permit a government to incentivize heterosexuality, there still must be a legitimate basis for doing so at all. (414) In the Establishment Clause context, one would have to identify the government's interest in incentivizing heterosexuality and then determine whether that purpose is sufficiently secular. As shown here, the reasons for wanting to incentivize heterosexuality derive from religious belief. We might also question whether a government ever has a legitimate reason to incentivize or encourage a change in something so fundamental as an individual's sexual orientation. (415) At root, then, identity politics and the definitional argument both prove to be unsatisfying as secular justifications for bans on same-sex marriage. Identity politics is the cynical notion that homosexuality is so aberrant that the only reasonable response to it is to change homosexuals into heterosexuals, and failing that, to punish them for their aberrance by withholding civil rights. Because identity politics derives entirely from religious belief, it is an insufficiently-secular justification for banning same-sex marriage. The definitional argument fails because it does not make an argument; it merely states a definition. Asserting that religious marriage is the only possible definition of marriage defies both fact and reason--moreover, the proffered definition is insufficiently secular "because the tradition in question is a religious one." (416) c. Marriage as an Intergenerational Values-Transmission Device Preservationists often make an instrumentalist claim that opposite-sex marriage resulting in a household run by a mother and a father is the primary--and as some claim, the only--way that values and beliefs are transmitted across generations. (417) I will leave alone the incredible insult that such a claim hurls toward single-parent and same-sex parent families, focusing instead on the claimed secular relationship between marriage-as-a-values-transmitting-device and a ban on same-sex civil marriage. At the outset, it is worth asking why then, if marriage is so good at serving this noble purpose, same-sex couples should be barred from taking advantage of it? Why should same-sex couples not be allowed to pass on their values in such an effective way? Values-transmission is a really good reason to have marriage at all; for civilizations to survive, they must necessarily have institutions that facilitate the intergenerational transfer of accumulated cultural knowledge, values, and beliefs. However, what the preservationists have failed to explain is why marriage's ability to serve this valuable function inherently justifies limiting access to marriage to only opposite-sex couples. So what else might be going on with this claim? What secular justification is there to prevent same-sex couples from taking advantage of values-trans |