Anti-Prop 8: Football Players and Humanists

Though I have at times (see Valentine's Day post), don't really have much of a desire to directly respond here to tired anti-same sex marriage arguments/briefs, especially the tiresome assuming the premise arguments of the sort found in the book cited earlier (see, e.g., a two star review at Amazon; the one star reviews at this time are lazy refutations that don't do the right side much favors).  SCOTUSBlog lists various briefs on both sides, a list of the sign of the sane here, including by two football players!  One is the product of an interracial family, so is particularly concerned about equality, the other a punter that has received some press for his views. 

It's appreciated that there is sanity in the sports universe, including many media voices. The morning show (the duo is a former football player and the usual macho sort) on the local WFAN station, e.g., was offended by various reports of asking players their sexuality or their opinions on various pro-gay/lesbian issues.  You just know that many of the listeners, including some not overly enlightened guys, aren't quite as idealistic.

The brief is short and though written by a law professor and lawyer, it is largely a down to earth statement about equality and the importance of sports to culture.  As an aside, this is why it annoyed me when someone in another forum diminished the importance of sports (the national past-time?!) in a discussion of steroids. At one point, e.g., it notes that even a fifth grader can see the problem with Prop 8.  It also reminds the Supreme Court of its broad influence, yes, even to football players:

This Court, incredibly enough, has a central role in that process. Your stance, your legal reasoning, will be used by countless people, including athletes, to justify their actions. People are not wholly unplugged. They pay attention to what is going on in the world, what is going on in politics, and what is going on in the law. Professional athletes are citizens of this country just like everyone else, and just like everyone else, the decisions of the Supreme Court are powerful indicators of acceptable behavior.

I think this partially why it is not likely a majority will just bluntly uphold the Prop 8 and DOMA laws though standing mechanisms might be used to dispose of at least one of them. Prop 8 just has too much baggage, unlike let's say when same sex couples went to state court to obtain same sex marriage rights, full stop. We shall see. The humanist brief is important because it both gets to the heart of the matter and addresses something largely ignored (if touched upon at times) by other top briefs.

This is not simply a case about gay rights.  It is a case about human rights, which find their compelling moral imperative in a consideration of our common humanity.  Empathy for our fellow man and woman, grounded in the recognition that each of us could be him or her, is the force that compels the just among us to insist on upholding the ideal of legal equality for all.  Nor is this case, properly considered, merely about the civil institution of marriage, the right to build a committed and stable life with the one you love on the same legal basis as any other human being. The denial of any civil right on the basis of traits that make up the core identity of another human, absent a compelling justification, violates our most foundational constitutional values.

The brief also -- this is fairly typical -- notes that the laws cannot just have a moral basis, but address "concrete harms."  This is the "Lawrence" rule and ultimately addresses the circular nature of merely upholding laws, especially those that target groups or invade constitutional liberties, because they are immoral. The brief is particularly concerned with the principle since there is often a religious aspect here, particularly if you do not define the term narrowly.  It adds a bit of honesty:

Of course, not all Christians read these portions of the Bible as compelling them to discriminate against African Americans, women and gays and lesbians, but it is clear that sufficiently large portions of the Christian-majority electorate have voted to discriminate on the basis of sexual orientation in approving the myriad of anti-marriage equality measures that have been enacted in recent years, often as constitutional amendments requiring a super majority vote. As a counterpoint, amici AHA, AEU and SHJ would like to state that their humanist beliefs require them to respect and honor the wishes of those gay or lesbian individuals seeking to be married in ceremonies involving their organizations.

As with abortion rights, those who oppose equality and liberty here ultimately are repeatedly motivated by sectarian religious concerns.  Meanwhile, the brief does a good job facing up a major concern of the other side, the idea that SSM will hinder free exercise of religion.  It is unclear why it would specifically, since various religions already oppose some aspects of marriage, such as easy divorce and gender equality.  Nonetheless, this is a major concern and it does merit amici focus.

The brief notes that neutral laws that regulate public accommodations and  government benefits does not violate free exercise rights.* If the groups wish to obtain exemptions, the proper place is the legislature, not the courts in this fashion. Such exemptions are not [at least, I might add, generally speaking] constitutionally necessary. As we have seen in the contraception mandate wars, this general rule had force for some time:

Even pre-Smith [written by Scalia], this Court found that when religious believers enter into commerce, they must comply with the law and cannot justify law-breaking that infringes the legal rights of others by claiming some special religious privilege. The Court held that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” U.S. v. Lee.

Religions can still control their message, limit marriages to their own members, control internal church decisions (e.g., not hire teachers who violate their bigoted views as to marriage) and believe what they wish.  They cannot "have their religious views written into law so that others may be compelled to follow them" except to the degree such views have secular legitimacy (e.g., equality in marriage in a religious view of many).  This sort of "religious liberty" is not protected by the First Amendment.

As Romer v. Evans notes, even taking their concerns somewhat seriously, Prop 8 is a bad fit to address their specific needs as seen by states that have protected SSM along with citing religious exemptions and such.  Nonetheless, at some point, religious institutions have to follow the rules like the rest of us, especially when they move past purely private realms.  If they want to rent property, e.g., not just to their fellow believers, they need to follow civil rights laws, especially if parks and such are involved.  The same would apply to general employee benefits. Anyway, there is nothing special about SSM here -- see, e.g., Catholics/divorce.

Anyway, that football brief is recommended. 

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* The brief here hangs the opponents by their own petard, in a fashion, by citing the Solomon Amendment case.

I am not a quite a fan, but as with Smith, it does provide a reminder of current doctrine. It is one thing to keep people out of the Boy Scouts because they are gay; it is another to not serve them in public accommodations without needing to endorse their beliefs in the process. The right to association, expressive or otherwise, does not reach that far.