Obergefell and the Free Exercise of Religion: Some Initial Thoughts

In the considerable wake of the Supreme Court’s decision finding a constitutional right to same-sex marriage in Obergefell v. Hodges (June 26, 2015), people of faith have suggested  a number of different responses, many of which seem unwise to me. Here are my initial thoughts on those suggestions, as well as some of my own.

1. Professor Robert George has suggested that people of faith should treat the decision the same way President Abraham Lincoln dealt with the Dred Scott decision, treating it as “anti-constitutional and illegitimate,” and refusing to “treat and regard it as a binding and settled matter.” Other commentators have called for a new Constitutional Convention to ban same-sex marriage. By contrast, still others have called for religious people to withdraw from the public sphere altogether. In my view, all of these approaches fail as an effective response to the Obergefell ruling. Thus, those opposing the ruling will not be compared to Abraham Lincoln, but rather to the Southern segregationists who opposed implementation of the ruling in Brown v. Board of Education (1954). Moreover, those calling for a Constitutional Convention, in the unlikely event they were able to attain their goal, might well find that the Free Exercise Clause (and indeed much of the rest of the First Amendment) would not survive intact. Finally, those calling for withdrawal from the public square would leave that platform for discussion one-sided, assuring a complete defeat for all of their faith-based positions on matters of public concern.

2. In determining the proper response to the decision, it is important to keep in mind that Obergefell raises serious questions as to what freedom the decision leaves people of faith and others to oppose same-sex marriage. Justice Kennedy’s majority opinion unsatisfactorily deals with this issue. On page 27, he devotes a lengthy paragraph to the rights of “religious organizations and persons,” who, he says, “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” (Emphasis added.) While this is all well and good, it seems to limit rights to those conferred under the Free Speech Clause of the First Amendment by using the words “advocate” and “teach.” Indeed, in his dissenting opinion, Chief Justice Roberts notes at page 28 that “The First Amendment guarantees…the freedom to”exercise” religion. Ominously, that is not a word the majority uses.” (Italics in original.)

Thus, “advocacy” may embrace teaching and protesting (at abortion clinics, for example), but will it also embrace such activities as priests or ministers refusing to perform same-sex marriages, or local bakeries refusing to bake cakes for same-sex wedding receptions? Here, I believe, that sensible compromises are called for. Priests, ministers, rabbis, and Muslim clerics should consider withdrawing from performing marriages on behalf of the state, and limit their ministries to performing religious weddings. (A parallel civil wedding could easily be accommodated at the wedding reception, to avoid inconvenience to the couple being married.) Clerical withdrawal from civil weddings has been suggested by Catholic bishops and clergy in the United States and in Europe to avoid any entanglement with the state, hoping that such an approach would prevent the state from inflicting penalties for refusals to perform same-sex marriages. A more difficult issue arises from the specter that religions which refuse to countenance same-sex marriages may lose their tax-exempt status. That this is a real prospect was underlined at the oral argument in Obergefell, where the Solicitor General of United States refused to rule out that possibility, a point noted by Chief Justice Roberts at page 28 of his dissenting opinion.

The case of the reluctant baker also has a workable compromise. One who opens his or her business to the public may reasonably be required to provide a wedding cake to a same-sex couple who comes into the bakery to order a cake. By contrast, however, same-sex couples should not be permitted to mandate that a wedding cake be decorated with pro-same-sex marriage or pro-gay slogans. The First Amendment should protect the baker who refuses such a request.

3. In considering the issue of exercising the right to oppose same-sex marriage in the public square, and to conduct religious ceremonies and private businesses without improper governmental interference, people of faith should keep in mind, as Rod Dreher has observed, that “We lost the culture long before we lost the Supreme Court.” Thus, as a result of extremely effective advocacy by those supporting same-sex marriage, including the enlistment of major corporations and the military to their side, the Gallup Organization reported in May, 2015, that 60 percent of Americans now support same-sex marriage. Public attitudes on the issue have changed at a meteoric pace; a New York Times poll in 2003, for example, reported that 61% of the American people opposed same-sex marriage, and that 55% favored a constitutional amendment allowing marriage only between a man and a woman. Given this rapid shift in public opinion, it is necessary for people of faith to more effectively address the culture as, for example, by advocating in the public square for their position regarding the importance of having both a mother and a father in a family, supporting that position with empirical studies.

Advocacy on the issue of same-sex marriage, or indeed on any issue of importance, should be conducted with great respect for those who disagree with the position advocated. One model which should be followed is that of the pro-life community in its steady and effective advocacy against abortion, and its efforts to repudiate Roe v. Wade (1973) over the 42 years since it was decided. Peaceful protests, combined with educational activities such as exhibiting ultrasound pictures of developing fetuses, have shifted public opinion, particularly among the young, against unlimited abortion. This type of advocacy falls well within the protective ambit of Justice Kennedy’s opinion, and is the best approach for winning over hearts and minds to the position advocated by people of faith.

4. In a democracy, respect must be shown to all people, regardless of their views on contested public issues. It is also critically important that views opposed to majority thinking not be exiled from the public square, for this country was founded on the idea that free and unlimited debate must be preserved in the interest of preserving freedom for all.

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