HOW MAY THE U.S. SUPREME COURT RULING ON SAME-SEX MARRIAGE AFFECT RELIGIOUS LIBERTY?

CITY JOURNAL

Adam Freedman

Obergefell’s Threat to Religious Liberty The Supreme Court decision takes self-government out of Americans’ hands. 1 July 2015

Despite what the newspaper headlines say, the U.S. Supreme Court’s ruling in Obergefell v. Hodges did not “legalize” same-sex marriage. It mandated same-sex marriage, something very different. States were previously free to recognize gay marriage, but now they are compelled to do so. From now on, it is illegal—unconstitutional—for any state not to issue marriage licenses to same-sex couples.

Many tout Obergefell as a victory for civil rights, but it is anything but. By turning same-sex marriage into a constitutional “right,” the Supreme Court has denied the people of all 50 states the most important civil right of all—the right to govern themselves. A mere decade into the political deliberation on same-sex marriage, the Court has taken the issue away from the voters. According to the narrow 5–4 majority, there has already been more than enough “legislation, litigation, and debate,” as Justice Anthony Kennedy put it.

The damage to democracy is bad enough, but it is greatly compounded by the damage to American federalism. The federal government has no constitutional authority to regulate marriage, nor does it have a roving license to promote “dignity,” “autonomy,” or any of the other amorphous phrases contained in Justice Anthony Kennedy’s majority opinion. If the Constitution granted anything like that kind of authority to the central government, the document would never have been ratified. In Federalist No. 45, James Madison assured readers that, under the proposed Constitution, the states would remain sovereign over “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people” (emphasis added).

By jettisoning federalism, the Court has put other civil liberties at risk. When the definition of marriage was a matter of state policy, voters and politicians could balance competing interest—particularly the rights of religious organizations that adhere to the traditional definition of marriage—based on local preferences. That kind of balancing is scarcely possible in federal courts, which are, as Chief Justice Roberts pointed out in his dissent, “blunt instruments when it comes to creating rights” because “they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.”

Consider the Court’s rationale in Obergefell. To arrive at its result, the Court held that the Constitution creates a “fundamental” right to same-sex marriage—and that that right is protected from state interference by the Due Process Clause of the Fourteenth Amendment. This holding is a variation of the doctrine known as “substantive due process,” a judicial technique used by federal courts to strike down state laws on policy grounds.

Fundamental rights are blunt instruments because they leave lawmakers very little room to accommodate practices inconsistent with such rights. In the new regime, courts will likely hold that states are prohibited from placing any burden on the right to same-sex marriage unless it furthers a compelling state interest. Indeed, Justice Kennedy’s opinion makes numerous references to Loving v. Virginia, the case that struck down bans on interracial marriage. Never mind that the opposite-sex nature of marriage spans all eras and all cultures, whereas the anti-miscegenation laws struck down in Loving are a relic of the relatively brief Jim Crow era; for the Court, both are expressions of rank prejudice. If traditional marriage has the same moral status as Jim Crow, then how can one compromise with its adherents?

It will not be long before the courts are asked to extend the logic of the 1983 Supreme Court decision denying tax-exempt status to Bob Jones University because it did not admit applicants engaged in an interracial marriage or known to advocate interracial marriage or dating. The Court held that charitable status was not appropriate for institutions that violate a “fundamental national policy” such as racial equality. Marriage equality is now a fundamental right: how long before it is declared a “fundamental national policy” under the Bob Jones rationale?

During oral argument in Obergefell, Solicitor General Donald B. Verrilli, Jr., conceded that colleges and universities that oppose same-sex marriage could lose their tax-exempt status. “It is going to be an issue,” he acknowledged. Justice Kennedy’s opinion offered little solace on this front: a single paragraph of a 28-page opinion, in which he promises merely that religious individuals and organizations “may continue to advocate” traditional marriage. But the First Amendment guarantees the right to the free exercise of religion, not merely the freedom to espouse a religious view. If traditional churches are required to perform same-sex wedding ceremonies and religious schools are required to countenance same-sex marriage, surely they are not enjoying free religious exercise.

Already, a movement is afoot to silence religious opponents of same-sex marriage. Just two days after the Court’s ruling, journalist Mark Oppenheimer took to the pages of Time to argue for the total abolition of tax-exempt status for religious institutions. The American Civil Liberties Union, meanwhile, announced that it would no longer support the Religious Freedom Restoration Act (RFRA), a federal statute designed to protect Americans against laws that “substantially burden” the free exercise of religion, for fear that RFRA will be “used as a sword to discriminate against women, gay and transgender people.” Liberal outlets such as the Think Progress website, calling the law an expression of “anti-gay backlash,” denounced Indiana’s recent attempt to enact its own version of RFRA.

Judges and bureaucrats will soon order states to remove any support, direct or indirect, for institutions that oppose gay marriage. This trend, of course, is already underway—witness the Catholic Church’s withdrawal from the adoption business in states where adoption agencies must place children with same-sex couples. But it’s one thing to be forced out of Massachusetts; now the Church must reconsider its adoption services throughout the U.S.

Litigation against photographers and caterers who refuse to facilitate same-sex weddings has also been going on for some time. Before Obergefell, states had a chance to rein in these suits, or at least try to balance the conscience rights of religious Christians against the claims of aggrieved couples. But now that gay marriage is a “fundamental right,” that right must be upheld not only by the government but by also by private companies that operate any “public accommodation.” Depending on the state, public accommodations can include restaurants, stores, hospitals, gyms, barbershops, hotels, libraries, bookstores, concert halls, mortuaries, and trailer parks. Expect private advocacy groups to pressure government prosecutors to root out perceived anti-gay-marriage attitudes throughout the private sector.

The new constitutional right to same-sex marriage will also profoundly affect school curriculum. In 2008, a federal appeals court upheld a Lexington, Massachusetts school district’s decision to teach children as young as kindergarten age about same-sex marriage—despite parental objections based on religious beliefs—because “[g]iven that Massachusetts has recognized gay marriage under its state constitution, it is entirely rational for its schools to educate their students regarding that recognition.” Books like Heather Has Two Mommies and King and King will likely become required reading under state guidelines and the Common Core. Any dissent will be viewed as bigotry.

Other questions linger. Can school vouchers be used at schools affiliated with churches that oppose same-sex marriage? Can a state university employ a professor who opposes same-sex marriage?

It will take some time for the United States to digest the magnitude of Obergefell. Five unelected judges have imposed a still-controversial definition of marriage on the entire country. As first steps, Congress should strengthen RFRA and make it apply explicitly to religious beliefs concerning marriage. States that have not yet enacted their own versions of RFRA should do so as soon as possible. The religious liberty of the American people is at stake.

Adam Freedman, a lawyer, is the author of The Naked Constitution. His new book, just published, is A Less Perfect Union.