19_WILSON.DOC 2/8/2007 2:11 PM PRESERVATIONISM, OR THE ELEPHANT IN THE ROOM: HOW OPPONENTS OF SAME-SEX MARRIAGE DECEIVE US INTO ESTABLISHING RELIGION JUSTIN T. WILSON* “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 Committee1 INTRODUCTION...............................................................................................................562 I. DEFINING “MARRIAGE”........................................................................................567 A. A Brief History and Overview................................................................567 B. The Establishment Clause and Our Religious Heritage......................576 II. A PRIMER ON THE FEDERAL MARRIAGE AMENDMENT AND ITS KIN..................586 A. What Are Same-Sex Marriage Bans and What Do They Do? .............586 B. Who Supports the FMA? .........................................................................592 III. WHERE ARE WE GOING, AND WHY ARE WE IN THIS HANDBASKET?: A SHIFT IN FUNDAMENTAL(IST) RHETORIC .............................................................597 A. The Theoretical Underpinnings of Preservationism............................599 B. Preservationism: An Application ...........................................................602 IV. MODERN ESTABLISHMENT CLAUSE JURISPRUDENCE: “HOPELESS DISARRAY” ............................................................................................................604 A. The Lemon-Endorsement Test: Context-Specificity and the Requirement of Government Neutrality Toward and Among Religions ....................................................................................................606 1. The Lemon Test.................................................................................606 2. The Endorsement Test........................................................................607 B. The Historical-Acknowledgement Test: A Free Pass to Christian Majorities..................................................................................611 1. “Unbroken History”: Chief Justice Rehnquist’s Test.........................611 2. The Framers and Original Meaning: Justice Scalia’s Test.................613 * J.D., Duke University School of Law, expected May 2007; B.Mus., St. Olaf College. This Article is dedicated to Paul S. Greene, who never once doubted that I could write this. Many thanks to Prof. Kathryn W. Bradley for her ever-insightful advice; to Ryan S. Higgins, for his eternal patience and calm steering hand; and to Christopher R. Murray and Brian J. Wilson for many hours of thought-provoking conversation. Many thanks also to the Journal staff; without you, this Symposium Issue would never have been possible. 1. Capital Notebook, BALT. SUN, Mar. 2, 2006, at 5B (reporting on Prof. Raskin’s March 1, 2006 testimony). 561 19_WILSON.DOC 2/8/2007 2:11 PM 562 DUKE JOURNAL OF GENDER LAW & POLICY Volume 14:561 2007 V. DO SAME-SEX MARRIAGE BANS PASS MUSTER?: APPLYING THE LEMON- ENDORSEMENT TEST .............................................................................................615 A. The Search for a Secular Purpose: Evaluating the Arguments Against Same-Sex Civil Marriage...........................................................615 1. The Federal Defense of Marriage Act (DOMA), Social Science, and a Bit of History ..............................................................616 2. Why We Have Opposite-Sex Marriage: Circularity, Question-Begging, and a Pound of Logic...........................................623 3. Of Slippery Slopes and Social Destruction: Consequentialism, Perversity, and Chicken Little .............................644 4. A New Slippery Slope: Religious Freedom and Sincerely- Held Beliefs.........................................................................................656 5. Warhorses: Public Health and Morals ...............................................660 6. Federalism, the Conflict of Laws, and Institutional Legitimacy ..........................................................................................667 B. Applying the Lemon-Endorsement Test.................................................671 1. What Does the Reasonable Observer Know About the Context and History of Same-Sex Marriage Bans and the FMA? .................................................................................................672 2. Does the FMA Have the Purpose of Endorsing or Establishing Religion?........................................................................673 3. Does the FMA Have the Effect of Endorsing or Establishing Religion? ............................................................................................674 4. Does the FMA Segment Society into Political Insiders and Outsiders Based Upon Their Religious Beliefs?.................................675 VI. CONCLUSION: RESOLVING OUR DEFINITIONAL PROBLEM .....................................677 INTRODUCTION 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 2. Throughout this Article, I use the terms “same-sex marriage” and “same-sex civil marriage” interchangeably to connote all two-party civil relationships in which one or both of the parties, for whatever reason, do not conform to a “one biological man, one biological woman” paradigm. The terms do not include incestuous, bestial, plural, polygamous, polygynous, polyandrous, polyamorous, monoamorous, child-adult, child-child, or group marriage models. 3. See infra Part I.B (discussing the ecclesiastical roots of modern-day civil marriage in America). 19_WILSON.DOC 2/8/2007 2:11 PM PRESERVATIONISM 563 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 age6 and religiosity.7 Indeed, young adults and “seculars” actually favor same-sex civil marriage by substantial margins.8 The most commonly-cited reason for opposing same-sex civil marriage is that it goes against one’s own religious 4. The Commonwealth of Massachusetts is only state to bestow full marriage rights on same- sex couples. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (holding that the Massachusetts Legislature’s failure to extend civil marriage to same-sex couples violated the Massachusetts Constitution’s equal protection guarantees; giving the Massachusetts Legislature 180 days to enact same-sex civil marriage); see also Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (responding to question from Massachusetts Senate regarding the permissibility of same-sex civil unions in lieu of same-sex civil marriage; holding that the same state constitutional infirmities lay with permitting only same-sex civil unions as with failing to permit same-sex civil marriage). As this Article is going to press, the Massachusetts Legislature has just voted to authorize a citizen petition proposing a state constitutional amendment banning same-sex civil marriage. Cf. Doyle v. Sec. of the Commonwealth, SJC-09887, slip op. at *1 (Mass. Dec. 27, 2006) (in response to suit seeking order forcing the legislature to vote on the petition, holding that, while no judicial remedy existed to force a vote on the petition, “[t]hose members who now seek to avoid their lawful obligations . , ultimately will have to answer to the people who elected them”). The Legislature must authorize the petition in its 2007 legislative session before the measure can be placed on the statewide ballot in 2008. Authorization requires a “yes” vote from twenty-five percent of the legislators in two consecutive legislative sessions; the 2006 session was the first. It is unclear whether the petition will pass in 2007, and if it appears before the voters in 2008, it is unclear whether the measure will be adopted. See Pam Belluck, Same-Sex Marriage Vote Advances in Massachusetts, N.Y. TIMES, Jan. 3, 2007, at A12. In 2006, a Boston Globe survey showed that approximately fifty-six percent of Massachusetts residents support same-sex civil marriage. See Michael Powell & Robin Shulman, Mass. Gay Marriage Law Contested, WASH. POST, Jan. 3, 2007, at A3. 5. See Lewis v. Harris, 908 A.2d 196, 208 & n.11 (N.J. 2006) (cataloguing marriage laws in all fifty states). 6. PEW RESEARCH CENTER, PRAGMATIC AMERICANS LIBERAL AND CONSERVATIVE ON