Not-So Humorous Bill

Six South Carolina State Representatives introduced bill H4949 titled the “Marriage and Constitution Restoration Act” to the South Carolina legislature last week. The bill is designed to define and outlaw ‘parody’ marriages in South Carolina. A ‘parody’ marriage under this legislation is categorized as any marriage that is not between a man and a woman. This bill targets same-sex marriages and claims that by allowing same-sex marriage in the State, South Carolina would be violating the Establishment Clause of the First Amendment of the Constitution.

The arguments that the legislators put forth to defend the bill assert that non-heterosexual marriages and LGBTQ sexual orientations are a form of religious faith since they are not “natural”. Thus, they reason, by allowing these marriages the government is supporting “Secular Humanism”, which has been deemed a religion in the court cases Torcaso v. Watkins, 367 U.S. 488 (1961), and Edwards v. Aguillard, 482 U.S. 578 (1987). The legislators believe that by the government supporting ‘Secular Humanism’ and arguing that heterosexual marriage is “neutral, natural, and noncontroversial” the government is entangling itself with religion by legalizing same-sex marriage and is favoring religion over non-religion.

These absurd arguments rely on the idea that all same-sex couples are religious members of “Secular Humanism” and that by allowing same-sex marriages the government is favoring this religion over the secular nature of heterosexual marriages. The ACLU has already written an article in opposition to this bill and describes how disrespectful the legislators are acting by labeling same-sex marriages as a ‘parody’. The Webster Dictionary defines ‘parody’ as “an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect." Thus, the legislators are using this term to make a mockery of same-sex couples in an appalling manner.

The arguments made by the legislators who consider same-sex marriage a violation of the Establishment Clause are rooted in false interpretations and misunderstanding of sexual orientation, identity, and religion. The Establishment Clause states “Congress shall make no law respecting the establishment of religion.” Same-sex marriages can and do occur between Jewish, Buddhist, Hindu, Atheist, Christian, and all spectrums of religious and non-religious people. This proves that a person’s sexual preference is not specifically tied to ‘Secular Humanism’; therefore, the legalization of same-sex marriages is not establishing one religion as the law of the land.

The idea that marriage must be between a man and a woman was challenged by the 14^th Amendment in the recent court case Obergefell v. Hodges, which legalized same-sex marriages.  The proposed bill defining ‘parody’ marriage will likely be deemed unconstitutional under this court precedent.

In my opinion, the legislators who are using the Establishment Clause to pass the bill H.4949 are taking a hilarious overstep in their interpretation of the intended use of the First Amendment. The South Carolina legislators are attempting to make a case for delegitimizing same-sex marriages based on the idea that all same-sex couples follow ‘Secular Humanism’, which is a false impression. I argue that this use of the Establishment Clause is discriminatory at its worst and humorous at its best.

The Lemon Test is typically used in court cases involving potential violations of the Establishment Clause, however, I think it shows how ludicrous the legislators' claims are in creating this bill. The test states that for an action to be considered within one’s rights under the Establishment Clause the “government's action must have a secular legislative purpose, the government's action must not have the primary effect of either advancing or inhibiting religion; and the government's action must not result in an "excessive government entanglement" with religion.” I argue that same-sex marriage has a secular purpose because it is not confined to people of a singular religion or non-religion, and thus the idea that ‘Secular Humanism,’ is a recognized religion is irrelevant in this case. By this same reasoning gay-marriage neither inhibits nor promotes religion since sexual identity is not directly tied to specific religious beliefs. I argue that the legislators’ claim that “whereas it is unsettled whether or not sexual orientation is immutable or genetic and is, therefore, a matter of faith” is a complete misconception of the meaning of faith and identity. The legislators are essentially saying that any feature of one’s identity that is not genetic is in turn religious. Thus, excessive entanglement with religion and government is not violated and same-sex marriage law is not a violation of the Establishment Clause.

In considering the cases involving the Establishment Clause we have looked at in our course, what differences do you see with the legislators’ claims compared to other plaintiffs? Why do you think legislators appealed to the Establishment to make their case?