Over the years since I’ve been writing “Skeptic’s Collection” columns for BeguineAgain, there are certain topics that I have come to think of as vampires. Except, there are certain topics that are even more resilient than vampires. Vampires you can deal with once-for-all by the simple, though usually messy, expedient of a stake – some sources say an ash-wood stake – through the heart … and cutting off the head and stuffing the mouth with wild roses and burying at a crossroads or beside running water, etc., as alleged in some versions of vampire prophylaxis. But a topic that makes vampires look as delicate as a pre-pubescent Scarlett O’Hara is the issue of same-sex marriage, which has apparently arisen from the jurisprudential dead to assault the Alabama Supreme Court – which, to the Court's credit, very sensibly declined to defy the US Supreme Court in the Obergefell v. Hodges ruling. Which is all the more remarkable because -- remember -- we are talking Alabama here, not a counterculture commune in Vermont’s North-East Kingdom. But it occurs to me that there is a second vampire stumbling around, of even older provenance than gay marriage, which has not been confronted. But let’s take things in order.
All the usual arguments still apply, which, if you have followed my past columns on the subject, you can probably repeat, perhaps verbatim, in your sleep. I know I can. In fact, I have. The “establishment clause” of the US Constitution gets the US government out of the religion business altogether:
Congress shall make no law respecting an establishment of religion …
Note that the text does not say “Congress shall make no law establishing a church”. This is important. Yes, the actual, explicit establishment of a church is forbidden. Any law declaring the Catholic or Baptist or Congregational or … etc. … Church as the “established church” would be “facially” unconstitutional. (The “establishment” clause originally applied only to the Federal government, leaving States free to establish churches as they would. In fact, the State of Connecticut officially established the Congregational Church as the official State church in 1801, which prompted the Connecticut Baptists, at their convention in Danvers, to write that famous letter to President Thomas Jefferson, to which Mr. Jefferson replied with his even more famous “wall of separation” letter. But since then, the 14th Amendment of 1868 and the Gitlow decision of 1925 began a process of “incorporation,” whereby States are prohibited from doing most things – not quite all – the Federal government cannot do. Very few States ever had established churches, anyway.) Rather, the text refers to “respecting an establishment of religion”, i.e., the government – by now, both State and Federal – is prohibited from any action whatsoever, however indirect, which favors one collection of beliefs, however informal and non-institutionalized, over any other collection of religious beliefs in matters of faith, morals, and dogma. Even decisions like Lemon v. Kurtzman (1971) that allow for a narrow sliver of government assistance to churches (e.g., providing secular textbooks – math, physics, language arts, etc.) contain cautions against “excessive entanglement” (Lemon) of church and government. Government is here. Religion is there. Full stop.
One consequence of this case-law history – the most important consequence for same-sex marriage – is that from a constitutional standpoint, a marriage is just another secular contract, not essentially different from a contract with Verizon for cell-phone service or a contract with a gardening company to mulch and fertilize one’s lawn. Constitutionally, marriage has no religious dimension. The religious aspect of marriage is the exclusive ambit of religious institutions. (That latter prerogative is guaranteed by the “free exercise” clause of the First Amendment.) So constitutionally -- not religiously, not ecclesially, but constitutionally -- asking if gay couples should have a right to enter into a marriage – i.e., a marriage contract – is the same as asking if gay couples should be able to have cell-phone service or to contract with a gardening company for lawn care. Constitutionally, the answer to all three – marriage, cell phones, and lawn care – should be “Well, yes, of course!” because all three are just contracts. And denying gay people the right to enter into the marriage contract is no more legitimate than denying gay people cell phones and lawn care: all are equally violative of the “free exercise” clause of the Fourteenth Amendment. Furthermore, for a State to attempt to retroactively interdict gay couples’ marriages violates constitutional provisions against State government impairment of contracts under Article I, Section 10 – a provision that explicitly applies against the States. (There may be “localized” exceptions for exigent reasons, e.g., Home Building & Loan Association v. Blaisdell in 1934… long story … but none of those reasons apply here.) Bottom line: the debate about the permissibility of same-sex marriage should properly be confined exclusively to the “Church” side of Mr. Jefferson’s “wall of separation,” because it is, purely and exclusively, a question of sectarian doctrine pertaining to the interpretation of certain biblical texts and past Church teaching. Constitutionally, there is simply nothing to discuss, debate, or talk about. The Constitution solves the problem for us. Constitutionally, there simply never was – or, anyway, never should have been – an issue in the first place.
But the fact that the controversy over gay marriage persists in arising, vampire-like, to plague American society and culture – the considerations of the previous paragraph notwithstanding – does reveal something about (1) the presuppositions of people like Judge Moore about the nature of the American Union and (2) their presuppositions about the place of religion therein. This is the part of the issue I have never addressed before.
o The nature of the American Union
Primarily because of the issue of slavery and of the increasing cultural isolation of the States of the future Confederacy, the middle 1800s saw a great intensification of the controversy over what the word “United” in the phrase “United States” really means. At one extreme were people – often referred to as “High Federalists” – like Alexander Hamilton who were “radical nationalists” in that they believed the United States were “united” in the "hard" sense that the Nation was one immense, monolithic geographic and political entity so that whatever power devolved back to the States basically consisted of minor functions like collecting fees, fixing potholes, and drilling the State militia. (In fact, Hamilton was in favor of doing away with the States as such altogether and replacing them with simple administrative districts of the Federal government.) At the opposite extreme were people – almost all in the Deep South – like John C. Calhoun, who conceived of the United States as being, essentially, a 19th century version of the European Union … or maybe even the United Nations … a strictly optional / voluntary collection of sovereign States that held the real power, leaving the above fee-collection and pothole-fixing to the Federal government. (I recommend Calhoun’s Disquisition on Government for a fuller description of his radical States’-rights vision.) Almost everyone else was somewhere in the middle: the Union is less monolithic than Hamilton, but more so than Calhoun, conceived. But the radical States’-rights position of Calhoun became more strident as abolitionist sentiment in the North increased and as attempts to confine slavery to the South progressed through the various “compromise” movements of the middle 1800s (Missouri Compromise, Compromise of 1850, Kansas-Nebraska Act, et al.). Ultimately, the issue was settled by resort to force in the American Civil War.
At least, the issue was settled militarily on the battle fields on Antietam, Vicksburg, Gettysburg, Shiloh, the Wilderness, etc. Politically is another matter. For it is still being litigated in the courtrooms of many places in the Deep South by people like Judge Moore, who keep alive the memory of Calhoun and the flame of States’ rights in the face of, e.g., the Constitution’s Supremacy Clause, the 14th Amendment, the "incorporation" doctrine, and over a century and a half of case law. In the minds of Judge Moore, Kim Davis, et al., the meeting at Appomattox Courthouse occurred, of course, but the South never surrendered. In their minds, final power still rests with the States, not with the US Supreme Court.
o The place of religion in the American Union
As serious an issue as the nature of the American Union is, in some respects, the most disturbing question thinly veiled beneath the same-sex-marriage issue (and other issues like school prayer and the teaching of creationism / intelligent design) is the place of religion in society. Two hundred years of history -- probably an optimistic estimate -- teaches us, just as it taught the Founders of the Republic and the Framers of its Constitution, that when either a particular religion, or religion per se, is accorded a privileged place legally in the Nation, the result is chronic turbulence, social unrest, political instability, usually culminating in violence toward the non-privileged religions, retaliatory violence by them against the privileged, even low-level civil war. (Can you spell "Northern Ireland"? Can you spell "Sunni and Shi'a"? Good for you, you got it right!) By now, returning America to "biblical principles" amounts to returning America to the Thirty Years' War, the Inquisition, the ravaged Ireland of Cromwell's "Protectorate," and the regimentation of Calvin's Geneva. I say "by now" because all calls to return America to "biblical principles" presuppose a unanimity that probably never existed -- and that certainly does not exist now. Problem is, conservative Christians believe -- even if they almost never say so -- that their denomination, their sect, their Church, their body of doctrine, and their interpretation of the Bible should be supremely privileged. On same-sex marriage. On abortion. On school curricula. On ... you name it. Does this sound familiar? It should: it is a good hip-pocket synopsis of the history of Europe during the great religious wars. But the genius of the Constitution in general, and of the First Amendment in particular, and most particularly the two "religion" clauses ("establishment" and "free exercise") lies in its succinct distillation of the wisdom of the European Enlightenment, won at the cost of oceans of blood: matters of religion and religious morality that do not observably impact public safety, security, and order are properly confined to the religious individuals and religious communities themselves, with none more privileged than any other. Yes, you can dress theocracy in the vestments of a secular republic. You can also put Prada on a pig.
I would be ecstatic if I could look into a crystal ball and discover that this is the last column I will ever need to write on the issue of the Constitution, religion, and same-sex marriage. But past experience has taught me better. The chapter is finished, but not the book.
James R. Cowles
AL Supreme Court: Jeffrey Reed, 2009
Rainbow flag: Creative Commons ... CC by SA 2.0
Gay wedding: public domain
Gay marriage demonstrator: Uploaded from http://flickr.com/photo/44550450@N04/4585078752
John C. Calhoun: public domain