Legal disputes over the definition of marriage—such as the recent U.S. v. Windsor case, which struck down the Defense of Marriage Act—raise urgent questions about religious liberty rights in a pluralistic society. Windsor relies implicitly upon the “public reason” philosophy of John Rawls when considering such questions. Two new scholarly volumes evaluate this Rawlsian framework in light of religious pluralism; one, Rawls and Religion, collects essays in favor of the Rawlsian approach; the other, John Rawls and Christian Social Engagement: Justice as Unfairness, collects essays against it.
We asked contributors from these two volumes to participate in an exchange of views on the following question: Does the court’s opinion in Windsor strengthen or endanger religious pluralism?
I. Windsor Strikes a Blow for Religious Pluralism
Andrew F. March, Associate Professor of Political Science, Yale University
The United States Supreme Court has a decidedly mixed record of articulating the value of religious pluralism. When Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), argued that the “real object” of the First Amendment “was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects,” this was an explicit attempt to restrict religious pluralism as a value distinct from Christian supremacy. Somewhat more recently, the language of the Court in Bowers v. Hardwick (1986) takes aim at the value of religious pluralism in the name of religious authority. Chief Justice Burger joined with the majority in upholding Georgia’s statute criminalizing oral and anal sex in private between consenting adults when applied to homosexuals, noting that “decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”
Somewhat more ambiguous are statements that suggest either a hierarchy of religious commitments, with monotheistic religions in the Abrahamic tradition privileged over others, or a hierarchy of religious belief over non-belief. Both sentiments are represented in Justice Scalia’s well-known dissent in McCreary County, which refers, for example, to the “demonstrably false principle that the government cannot favor religion over irreligion” and declares it “entirely clear from our Nation’s historical practices that the Establishment Clause permits [the] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Sorry, Epicureans.
Which brings us to Windsor. The relevant passages in Justice Kennedy’s opinion are these: “[New York] State’s decision to give this class of persons [same-sex couples] the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. . . . The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment.” The Defense of Marriage Act (DOMA), of course, could not survive this kind of scrutiny because “the avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States,” and, in fact, “interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.” Thus, since “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” the Court invalidated the federal statute.
Although all Windsor did was preserve our traditional deference to states’ definition of marriage, Kennedy’s reasoning extends the protection of the Constitution to a new class of relationships. I read these remarks as a striking a blow not only for liberal moral pluralism and equality, but also for religious pluralism for three primary reasons.
First, Windsor protects more kinds of unions, including religiously grounded ones, and restricts none, and so expands pluralism. Insofar as Windsor restricts religious claims, it restricts religious claims over the lives of others. Believers are not told how to marry, how to pray, or even how to speak in public. They are told only that there are limits to their “external preferences”—that is, their preferences about what others do in these areas. It is not even “third-party harms” that were in question with DOMA (that is, harms to other persons in the course of acting on religious commitments); the sole function of DOMA was to restrict the meaning of words like “marriage” and “spouse.” Thus, insofar as DOMA was, objectively speaking, radically anti-pluralist, and the rejection of DOMA involves no restriction on the acceptable kinds of religious marriage, there is no question that religious pluralism is strengthened.
Second, Kennedy’s form of public reasoning or judicial justification expands the space for religious conscience in the aggregate. It is true that some religious citizens are less free to have one sectarian kind of religious reasoning (a strain of American Christianity) receive unquestioning deference by Supreme Court justices. Justice Kennedy draws on a House Report celebrating the fact that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality” to justify his opinion that DOMA aims at nothing other than to discriminate. This is clearly a move in the direction of religious and moral pluralism, just as diluting the exclusive authority of Islamic public reasoning in Iran, Egypt or Saudi Arabia, or softening the French understanding of secularism, would be. In a diverse society, expanding religious expression in the aggregate involves limiting religious expression at certain points where it serves to restrict the rights and freedoms of others.
Third, decisions like Windsor open the door for many new forms of marriage and new forms of religious expression. Perhaps Muslims, Mormons and Old Testament literalists will now be free to register plural marriages on religious grounds. These expanded freedoms may be a good thing or a bad thing on public policy grounds; but they would objectively expand the set of legally recognized, religiously motivated actions.
If the Court continues in this direction when it takes up same-sex marriage later this term and rules that no single sectarian conception of “marriage” can dominate the choices of all free and equal citizens even at the state level, then this will be an objective advance in the direction of pluralism. Pace Scalia in his Windsor dissent, and the Court would not be choosing between two incompatible conceptions of marriage—it would be allowing many to thrive. Of course, a far more profound, egalitarian and pluralistic move would be to completely unbundle the many rights and obligations attached to the legal status of being married by the state, and allow persons, partners and communities to decide how they want to distribute the joys and burdens of intimate and familial life. But first things first.
March contributed an essay entitled “Rethinking the Public Use of Religious Reasons” to the volume Rawls and Religion.
II. Whose Dignity? Which Pluralism? A Response to Andrew March
Daniel Kelly, founding member, Rogahn Kelly LLC
Once upon a time, Justice Kennedy said that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (Planned Parenthood v. Casey). You could be forgiven for understanding this as an affirmation that you and I get to define such things for ourselves. But his opinion in Windsor suggests the “one” to whom he was referring in Casey was himself. Apparently, it is for the Court to define such things, even when doing so restricts religious pluralism.
Professor March says that Windsor protects more kinds of unions, and makes it likely that the state will soon recognize additional forms of marriage. He is undoubtedly correct. But it does not follow that Justice Kennedy’s form of Rawlsian “public reasoning” expanded the aggregate space for religious conscience. In fact, Windsor is a good example of how “public reasoning” can deftly restrict religious pluralism while creating the appearance of enhanced liberty. This is the deftness of the Three-card Monte artist: Distract attention from where the real action is happening, and suddenly not everything is as it seems.
To measure Windsor’s effect on religious pluralism, we need to slow down Justice Kennedy’s fast shuffle so we can discern the elisions that make judicial authoritarianism look like religious pluralism. As it turns out, the blur obscured the Court’s failure to account for the nature of both religious pluralism and the state’s role in marriage.
We can view religious pluralism in two ways, and the one you choose will profoundly influence your understanding of what Windsor accomplished. The first is that it refers to a set of ground rules that maximizes the number of religions actively participating in society. Efficacy is found in a simple nose count—more extant religions means more religious pluralism. I’ll refer to this as Numerical Pluralism.
On the other hand, it could mean a set of rules that maximizes a person’s ability to conduct his affairs consistently with the requirements of his religion, whatever those might be. Here, efficacy is measured by how much of your faith you may follow before you hit legal restrictions. Religions, of course, are not mere collections of habits, liturgies, or religious artifacts. Most importantly, they make truth claims about matters of ultimate significance, like the meaning of existence, the universe, and the mystery of human life. Because Justice Kennedy once located these at the heart of liberty, I’ll call this Liberal Pluralism.
For the purpose of this article, I’ll assume there is at least one religion whose adherents would count it an abridgement of their free exercise should the state fail to ratify same-sex marriages. If that is true, Windsor expanded Numerical Pluralism, but only by restricting Liberal Pluralism. And that is largely because of the second elision obscured by its fast shuffle—the role of the state in relation to marriages.
The state operates always and everywhere by compulsion—laws are not suggestions, they are demands backed by the immense enforcement power of the government. So when the state declaims on competing truth claims, there are only a few possible outcomes:
- Dominance: Claim A takes operational prevalence over Claim B, but the adherent of Claim B continues asserting its truth.
- Demotion: Claim A takes operational prevalence over Claim B, and the adherent of Claim B demotes it from a truth claim to a mere preference or tradition.
- Conversion: Claim A takes operational prevalence over Claim B, and the adherent of Claim B rejects it in favor of Claim A.
- Relativization: Claim A and Claim B are both subordinated to some higher truth claim, perhaps implicitly, and the adherents of both choose their responses from options 1-3.
Ms. Windsor sought the state’s enforcement power in aid of her truth claim that there is no legitimate distinction to be made between heterosexual and same-sex marriages. The Court agreed, harshly maligning those who hold on to a competing truth claim as wishing only to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” homosexuals.
It further concluded that same-sex marriage is “a relationship . . . worthy of dignity in the community equal with all other marriages.” And it said the state may use its enforcement power to “confer on them a dignity and status of immense import” by creating same-sex marriage as an institution.
But the Court has no “dignity” reservoir from which it can ladle out allowances to worthy supplicants. When it “confers,” therefore, it is dipping into your reservoir. You will consider same-sex marriage to be equal with all other marriages. You will confer dignity, status and importance on same-sex marriages. And if you should fail, the state’s enforcement power awaits you.
The consequences for those trying to live out their religious beliefs is the loss of Liberal Pluralism. New Mexico photographers, for example, were punished for choosing not to shoot a same-sex commitment ceremony based on their religious beliefs (Elane Photography v. Willock). One of the justices of the New Mexico Supreme Court, who voted with the majority, acknowledged these individuals “now are compelled by law to compromise the very religious beliefs that inspire their lives.”
Similarly, Colorado’s Civil Rights Commission ordered a baker to undergo reeducation sessions to overcome his religious motivation for refusing to provide a cake for a same-sex wedding (Colo. Civ. Rights Comm. v. Craig).
And in the State of Washington, the court ruled against a florist who chose not to provide an arrangement for a same-sex wedding. It said she “cannot comply with both the law and her faith if she continues to provide flowers for weddings” (State of Washington v. Arlene’s Flowers, Inc.).
Windsor achieves, it is true, greater Numerical Pluralism. But that seems a poor trade-off for Liberal Pluralism. If the state can prevent you from following what your religion teaches about the meaning of existence, the universe or the mystery of human life, and compel you to instead comply with the teachings of a competing religion, there is no pluralism worthy of the name.
Kelly contributed an essay entitled “Rawls and Civil Society” to the volume John Rawls and Christian Social Engagement: Justice as Unfairness.
III. Justice Can Involve Transferring Dignity: A Reply
Andrew F. March
The disagreement between Kelly and me, as I see it, comes down to the following questions.
1. Is religious pluralism the bedrock commitment we care about, or is religious pluralism nested in a more fundamental commitment to moral pluralism and equal freedom?
2. Is dignity a zero-sum commodity, or is it potentially extendable to all persons without a decrease in the net amount of dignity enjoyed in society?
3. What kind of recognition, respect or dignity should the state extend to private intimate unions?
First, I take it to be obvious that non-religious persons are full moral equals in the eyes of the state. Kelly does not dispute this. He endorses the view that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” So freedom of conscience extends equally to atheists, agnostics and theists. On this we agree. And, thus, we must be agreed that religious pluralism is nested inside a wider commitment to moral and ethical pluralism.
Second, Kelly claims that there is “no ‘dignity’ reservoir from which [the Court] can ladle out allowances to worthy supplicants. When it ‘confers,’ therefore, it is dipping into your reservoir.” But that is not true per se. In order to defend this view, Kelly has to refer to the examples of private business owners compelled to provide services for same-sex weddings. Here is his own “Three-card Monte.” Kelly assumes that a right to “follow what your religion teaches about the meaning of existence, the universe or the mystery of human life” implies a right to discriminate in the provision of services if you own a business. Does it? Only if the same florists, photographers and bakers (and restaurants, hotels and resorts?) could also deny service to (a) a religious wedding (because of the patriarchal and heteronomous moral life implied) and (b) an interracial wedding. If Kelly thinks that denial of service in (a) and (b) ought to be legally permissible, then we are having a conversation about the state’s interference in the free market, not about the state’s recognition of marriages.
Moreover, if your dignity depends on public discrimination, then losing some of it is itself not a bad thing. White people were left with less of this kind of dignity as a result of civil rights legislation and men were left with less of it as a result of the anti-gender discrimination laws. I assume Kelly agrees that both were justifiable transfers from one ledger to another in the national economy of dignity. So, justice could actually require losing some status that you presently enjoy.
Finally, Kelly appears to be bothered also by Kennedy’s over-the-top ladling on of dignity to same-sex unions. This could be solved not by preserving existing discrimination but by a universal “leveling down” of the dignity that the state tries to extend to any domestic partnerships. For I certainly do not approve of unions that begin with a woman’s obligation not only to “love and honor” but also to obey a man. What if the state said, in effect, “we don’t baptize, why should we marry?” and extended civil unions for all—religious, secular, same-sex, opposite-sex, two-member, multi-member—domestic arrangements. I would still not be allowed to discriminate against those fellow citizens who have entered into patriarchal unions that I do not wish to honor, but at least the state wouldn’t be honoring them for me!
IV. Dignity Cannot Be Transferred: A Reply
From Professor March’s silence, I take it he agrees that Windsor promotes Numerical Pluralism at the expense of Liberal Pluralism, and that he is content with that result (whereas I am not). For my part, I agree that freedom of conscience extends equally to atheists, agnostics and theists.
Professor March’s response concentrates not so much on the consequences of the Court’s decision, as it does on the mechanism by which it accomplishes the abridgement of Liberal Pluralism. Essentially, he says that because the state may coercively confer dignity in the context of race relations, it must be able to do the same when the subject under consideration is same-sex marriage, even if it means less religious pluralism. He then surmises I might be bothered by the Court’s “over-the-top ladling on of dignity to same-sex unions.”
But the truth is that I’m not bothered by Windsor’s “transfer from one ledger to another in the national economy of dignity.” And that is because no such transfer actually occurred. What I am bothered by is the Court’s truncation of religious pluralism in service of an objective it couldn’t possibly reach. Professor March’s remark helpfully brings us to the very heart and problem of Windsor—the Court believed it could compulsively traffic in the dignity market. It can’t.
My original analysis did not fault the Court for transferring dignity when it should not, but for attempting something it had no more power to accomplish than repealing the law of gravity. Although Justice Kennedy is adept at expressing his personal wishes and moral aspirations in vivid prose, he lacks a sober appreciation for the limited authority he wields as a member of the Court.
The state may compel people to behave in a prescribed way, but dignity is not a matter of compulsion. Consequently, when the state dips its ladle into your reservoir, it won’t be withdrawing dignity. Resentment, perhaps, or bitterness, but not love, nor acceptance, nor any of the other elements that, when expressed together, confer dignity. It is more than just a little unlikely that the New Mexico photographers, Colorado baker and Washington florist have experienced an epiphany by virtue of the judicial decrees to which their faith is now subject.
We would do well to pay attention to the story of the obstinate child who, after finally complying with his parents’ command to sit down, defiantly announced: “I may be sitting on the outside, but I’m still standing on the inside.” The sum total of Windsor, then, is this: Those who did not need a court order to confer dignity on same-sex couples will continue their conferring, whereas those not so inclined will suffer a reduction in their religious liberty, while still standing on the inside. This is just a simulacrum of real pluralism.
A word on Professor March’s arguendo ad Jim Crow: Both the “race” and “religious pluralism” issues are part of the larger question regarding the scope of governmental authority in a free society. But it will not do to try resolving one issue by referring to the other. They entail different histories and principles, so it would be entirely insufficient to address this as a mere aside. In any event, whatever one might say about the legal status of race relations, it is undoubtedly true that the state confers no more dignity there than it will as a result of the Windsor decision.
My thanks to Professor March for a lively conversation.
Greg Forster is the author of six books and the co-editor of three books, including John Rawls and Christian Social Engagement: Justice as Unfairness.