Judicial review, gay marriage and God

As part of a new op-ed series, FIU News shares the expertise and diverse perspectives of members of the university community. In this piece, FIU Law Professor José Gabilondo discusses the June 26 Supreme Court ruling that made same-sex marriage a right nationwide. 

By José Gabilondo

Last Friday, the Supreme Court held that states can no longer ban gays and lesbians from civil marriage. Some say this is undemocratic. It was. That’s a good thing and here’s why.

When politicians say that we’re a democracy, it’s not the whole truth.  The United States is a constitutional republic that blends representational – not direct – democracy with strong anti-democratic features. The one percent of their generation, the Founding Fathers were ultra-elites who feared the unmediated will of the People. So they kept legislative powers in check with anti-majoritarian mechanisms like the Electoral College, the Senate and a federal judiciary that could annul statutes and executive acts.  Especially wary of local majorities, the Founders made federal law superior to state law.

In this Constitutional scheme, a federal judge steps in when state majorities run amok. That’s what happened on Friday. The Court exercised judicial review to shield a minority from the modern equivalent of a pitchfork-waving mob. All anti-gay discrimination – including the marriage bans – rests on one idea: heterosexuality is supreme because it is morally superior, healthier, more socially valuable, more Godly, or just plain better than homosexuality. Every attempt to draw a circle around gays and lesbians and to set them apart rests on this foundational bias. It is the only way that fathers, politicians, preachers and other authorities have justified treating an entire class of human beings as morally defective and socially inferior.

For decades, legal challenges to these practices failed. Federal judges raised in homophobia could not identify with gays and lesbians, in no small part because faith communities had succeeded in demonizing sexual minorities. Finally, judges woke up and began to ask “Why is the state banning gays and lesbians from a fundamental civil right?’ Every answer boiled down to the disapproval and dislike of a majority for a minority, i.e., gays and lesbians. In 2013, the Court held in Windsor that animus – the legal term for this kind of unreasoned hostility – was not enough to justify federal marriage discrimination against gays and lesbians.  This time around, the defenders of the state marriage bans couldn’t come up with anything better.

Now there’s nothing wrong with straight supremacy as religious doctrine, but it has no place in legal authority or public institutions. Friday’s decision brings legal uniformity to what had been a patchwork of equality states and discrimination states, but it leaves alone what’s in people’s hearts. Most of us grew up in families, schools and churches that promoted straight supremacy by insisting that homosexuals were different in a bad way. It’s no sin to be the product of your age.

Because the decision affects only civil marriage, though, it does not limit in any way – as the decision points out – the religious liberty of faith communities for whom straight supremacy is a core doctrine. These communities don’t have to offer religious marriage to same-sex couples. They are free to exclude gays and lesbians, limit their spiritual participation, enforce heterosexuality on their kids, proclaim God’s revealed truth that these sexual inverts are intrinsically evil, shun sexual minorities in private life, and, in more than 20 states, fire someone just for being gay.

This is good news for the Southern Baptist Convention, the Conference of Catholic Bishops, the LDS Church and the Republican Party, which enshrines straight supremacy in its official platform. Yet these groups accuse the decision of interfering with religious liberty.

That is odd because the decision deprives them of only one thing – the power to impose their religious views on others through state law. Admittedly, doing this is mean-spirited and overreaching, but that’s exactly what the marriage bans were. For some, it wasn’t enough to exercise their faith freely. The civil freedom of others also had to be limited.

The marriage cases are seen mostly as involving gay rights, but they lead directly into another fundamental question: how does civil society protect itself from overreaching by religious special interests? This time the Court got it right. The university is a good place to explore these issues, especially with an election coming. I hope that the coming academic year we do so in public events.

José Gabilondo is a professor of law at FIU. He teaches tax and corporate finance – and his scholarship focuses on debt markets and (separately) heterosexual subject formation in law.