Following up on his December 2010 Washington Post article, "On Gay Marriage, Stop Playing the Hate Card," Matthew J. Franck writes in the current (May 2011) issue of First Things:
In briefly rehearsing well-known defenses of conjugal marriage that others have elaborated elsewhere, I noted in the Post that marriage "has always existed in order to bring men and women together so that children will have mothers and fathers" and that same-sex unions are "not an expansion but a dismantling of the institution." The response of some readers was not merely that I had not fully fleshed out this argument (which I could readily admit) but that such statements did not even bear the marks of rationality—that they were so obviously wrong that only those in the grip of unreasoning hatred or bigotry could put them forward.
Some of our high public officials, unfortunately, have encouraged this kind of flattening and coarsening of our public discussion. Judge Joseph Tauro, of the federal district court in Boston, in ruling against the constitutionality of section 3 of the Defense of Marriage Act (which defines marriage as between one man and one woman for the purposes of federal law), said last July that the difference between same-sex couples and opposite-sex couples is a "distinction without meaning." How he claimed to know this, since he did not explain it, is anyone's guess, but it was enough for him to conclude that Congress, in passing DOMA, had acted on an "animus" that "targets" people on the basis of a "sexual orientation" of which Congress "disapproves." But DOMA was passed by overwhelming majorities in both houses of Congress, and signed by a Democratic president, for the express purpose of defending the right of the people in each state to govern themselves on the question of marriage. It would never even have been proposed in Congress but for the existence of a movement determined to make an end-run around the institutions of democratic decision-making—determined, that is, to persuade judges like Joseph Tauro to bend the Constitution to suit the purposes of a political agenda. DOMA is just what its title says it is—a defense of marriage against assault by a court-centered strategy. Given the feebleness of his arguments, it's a fair question just what "animus" the judge himself has toward people who disagree with him.
In late February, Judge Tauro's view was essentially adopted by the Obama administration, which announced that the Justice Department would no longer defend the constitutionality of section 3 of DOMA but would instead take the opposite position in federal courts. It is perfectly legitimate for presidents to assert their independent judgment about the constitutionality of the laws that govern us. But what passed for judgment in the administration's analysis was shockingly thin. The most substantial point made in Attorney General Eric Holder's letter to House Speaker John Boehner was that, during the 1996 debate on DOMA, some members of Congress had expressed "moral disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against."
The disapproval of "moral disapproval": This moves us closer to the heart of the matter. Not long after Judge Tauro's decision last summer came the ruling of Judge Vaughn Walker, of the federal district court in San Francisco, striking down California's Proposition 8, itself a defensive measure passed by a majority of the state's voters in 2008 after the state's supreme court invented a right of same-sex marriage under the California constitution. Judge Walker declared that there was no "rational basis" for Prop. 8. "Tradition alone," he wrote, "cannot form a rational basis for a law." Tradition normally has a presumption in its favor in such inquiries, but not for Judge Walker. He sniffed out what was really going on, declaring that "moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples." The law unavoidably speaks in the name of a community's moral vision, so to what did the judge really object? He called opposition to same-sex marriage a "private moral choice," with "private" meaning it was not entitled to enactment as public morality. Clearly, for Judge Walker, the reason for this conclusion lay in the second term of the phrase of his, "moral and religious views." In the most telling passage of his opinion, he claimed—as a "finding of fact," no less—that "religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians."
There we have it. Marriage only between a man and a woman is a mere "tradition" with no claim on our attention when a claim of "discrimination" is made on the other side. All that this tradition has going for it is the "moral and religious views" of its supporters. But the law embodies moral choices, so why is this moral viewpoint illegitimate as the basis of a law? The problem is that it is driven too much by the religious commitments of those who hold it—and so it must be dismissed from public life and relegated to the realm of "private moral choice," disallowed from enactment as the view of the majority in a democratic society. So toxic is it to hold certain religious views that merely believing them works a "harm" to other people. Those who hold these views must not only be prevented from enacting those views as the will of the democratic majority; they must, to the extent possible, be silenced in the public square. They must . . . shut up.
Read it all here. Prof. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.