Preservationism, or the Elephant in the Room: How Opponents of Same-Sex Marriage Deceive Us into Establishing Religion
Wilson, Justin T., Duke Journal of Gender Law & Policy
"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
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. …