Monday, June 18, 2012

Why DOMA Violates the Establishment Clause of the Constitution

I have long argued that anti-gay laws in general and laws like DOMA in particular are illegal because they establish one religious belief system in violation the First Amendment's guarantee of freedom of religion for all citizens and the ban on an established religion.  What DOMA in effect represents is the establishment of a conservative, gay-hating form of Christianity as the defacto established religion of the nation.  And as more religious denominations - e.g., the conservative Jews just joined the same sex marriage accepting ranks - come to accept same sex marriage, the discrimination against other religious beliefs is becoming more pronounced.  To date, most courts don't want to open their eyes to this unconstitutional defacto establishment of conservative Christianity as the nation's official religion or the special rights granted to this segment of religion.  A post in Towleroad looks at this legal reality.  Here are highlights:

Today, there are men and women of faith who are vocal supporters of gay rights, many of whom have taken their cues from religious leaders like the Reverends Troy Perry (right) and Brent Hawkes of the Metropolitan Community Church (MCC) and the Reverends John V. Moore and Cecil Williams of Glide Memorial Church in San Francisco. These men and their religious orders have not only made waves advocating on behalf of LGBT persons, but they have also put the weight of faith behind opposition to Prop 8, DOMA, and Don't Ask, Don't Tell; in support of students' rights to identity-affirming expression in schools; and in support of marriage recognition legislation in New York, Maine, North Carolina, and other states

This leadership and bridge-building is of singular importance, second only to exercising power where it counts. To that end, religious groups from many faiths have come together to file amicus briefs against the Defense of Marriage Act and against Prop 8. In their brief in Gill v. OPM, the First Circuit case that recently declared DOMA unconstitutional, for example, we see the importance of religious dialogue and religious allies.
To persons of faith, DOMA's definition of valid marriages for the purposes of federal law discriminates against those faiths that would define marriage differently. Whereas Gill's attorneys and the Department of Justice argued that DOMA fails a constitutional test because it treads on powers traditionally and exclusively left to the states and because it treats similarly situated individuals simply because of their sexual orientation, the amicus brief from our religious allies argued that DOMA departed from the federal government's traditional neutrality among various religious definitions of marriage, enshrining one -- a particularly conservative and arguably ahistorical Judeo-Christian definition -- as the only federal definition of civil marriage. In this way, DOMA violates the Constitution's ban on the establishment of religion, or the favoring of one religious doctrine over another.

This novel legal argument complements the moral weight and access brought by religious allies. We often find that our quest for equality takes us across religious territory and we shy away from those engagement all too often. The campaign against Prop 8 in California was decried for its anemic religious outreach, as were other campaigns. Granted, many religious houses spout hateful invectives against the gay community; but, it is also liberal reticence to engage in the language of morality, values, and piety that push our leaders to give up finding religious allies before they even try. After all, the libertarian language of freedom and rights is the balliwick of progressives. We feel most comfortable when discussing our right to do this or our freedom from that. But, true equality and honor for gay persons requires more than that. It requires that we dive into the language of values and morality and prove that our lives and marriages are worthy of state recognition.

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