Catholic Bishops To SCOTUS: Deny Marriage Equality Because Being Gay Is Just ‘Conduct’


The U.S. Conference of Catholic Bishops has filed amicus briefs in the two marriage equality cases before the Supreme Court, encouraging the Justices to rule in favor of discrimination. At the foundation of the Conference’s argument is the claim that gays don’t deserve any legal protections because the only thing that defines them is their “voluntary actions,” just like polygamists:

In contrast to the classes for which this Court has applied heightened scrutiny, what lower courts have understood to be a homosexual “orientation” is not a trait attributable from conception or birth. Rather, particularly as framed by Respondents here, it involves a species of conduct. Indeed, with this distinction in mind, this Court has recognized that a finding of a suspect or quasi-suspect class for equal protection purposes is  simply  inappropriate when the distinguishing characteristic is  a product of “voluntary action.”

Disregarding the “voluntary action” limit on “distinguishing traits” would yield absurd results, as it would threaten to expand dramatically the range of legislative categories triggering  heightened scrutiny.  In particular, any “voluntary action” that is now or has ever been illegal would readily satisfy the factor of having suffered government disfavor or a history of discrimination based on the distinguishing trait.  Where the conduct is still illegal, those with the trait could just as readily claim political powerlessness or the inability to attract the attention of lawmakers.  Finally,  if the current or former illegality of the “voluntary action” can be discounted as reflecting mere disapproval or discrimination, then it is a small step (if any) to conclude that the “voluntary action” bears no relation to the ability to perform or contribute to society.

The example of polygamists—a class that is defined in part by conduct—illustrates the point.  One can substitute “polygamists” for “homosexuals” as that term is used in the  Windsor opinion and arrive at the same conclusion for the former as the Second Circuit did with respect to  the latter. Our point, of course, is not that the two are morally equivalent, but simply that the Second Circuit’s logic leads to absurd results, and  that the absurdity originates with the decision to  ignore this Court’s “voluntary action” limitation on “distinguishing traits” that may trigger heightened scrutiny.

Unsurprisingly, the word “gay” is not to be found in the brief except when citing case law. It’s telling that the brief even uses scare-quotes around the term “orientation,” implying that the concept of a sexual orientation doesn’t even exist. Indeed, British Archbishop Vincent Nichols admitted earlier this month that the Catholic Church refuses to identify anybody by their sexual orientation. All the Church sees is sex — no identities.

The goal of completely erasing the lives of gays and lesbians is obviously apparent. Despite claims of protecting children’s well-being, the Church refuses to acknowledge that the many children raised by same-sex couples would benefit if their parents could marry. In the brief, the Bishops admit these families exist, but nothing more. Instead, they cite the problematic Mark Regnerus study and irrelevant “fatherless” studies to suggest that same-sex parents are inferior, when none of the data actually indicate that. In the name of protecting children, families, and society, they are doing the exact opposite.