Religious Liberty and the Constitution in the Wake of Obergefell

Supreme Court

I have to confess that I wasn’t all that surprised by the Supreme Court’s decision in Obergefell v. Hodges, which held that the 14th Amendment Due Process and Equal Protection clauses imply a right to marry (due process) and require that that right be extended to those who wish to marry same-sex partners (equal protection). Justice Anthony Kennedy, who wrote for the narrow (5-4) majority, had pretty much been telegraphing his intention since Lawrence v. Texas (2003) and Romer v. Evans (1996), and indeed since co-authoring the infamous “mystery passage” in the joint opinion in Planned Parenthood v. Casey (1992). In the former two cases, he described opposition to homosexuality as expressing only an “irrational animus,” thereby placing the letters of the Apostle Paul, not to mention millennia of both secular and religious teaching from a variety of traditions, in the same category as the most hateful inarticulate screed scrawled on a bathroom wall. Indeed, in his Lawrence dissent, Justice Antonin Scalia argued that the clear implication of the majority’s reasoning was that, its protestations to the contrary notwithstanding, there was no constitutional principle that could justify restricting marriage to opposite sex couples.[1] In Planned Parenthood, Kennedy and his co-authors laid the foundation by defining liberty in terms of what has come to be known as expressive individualism: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Now, my undergraduates understand and are even capable of reproducing Justice Kennedy’s reasoning. Of course, they state it much more simply: “I should have the right to marry whomever I please.” This straightforward combination of liberty and equality—our two American watchwords—explains why so many people exuberantly welcomed the Supreme Court’s decision.

But if they had given some thought both to the understanding of marriage and the canons of legal and judicial reasoning—as we should rightly expect of Justice Kennedy and his colleagues—my undergraduates, not to say the American people in general, might have had second thoughts.

Let me begin with the second point. The 14th Amendment Due Process clause has been used to protect our liberties against certain kinds of government encroachment. While the language of the clause is procedural—and thus applies most obviously (as does its 5th Amendment counterpart) to judicial proceedings—it has long been held also to protect substantive rights, hence the almost oxymoronic term “substantive due process.” When deciding which liberties were substantively protected by this clause, the Court, in order to discipline itself so as to leave as little room as possible for free-floating judicial creativity, has held that the 14th Amendment protects only those liberties (as Chief Justice John Roberts says in his dissent, quoting a very strong precedent) that are “’objectively, deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’” I repeat: if the liberty protected by the 14th Amendment is not directly tied to history or tradition, if there are not some authoritative standards to guide and control the justices, then we run the risk of liberty being whatever a majority (in this case, a “bare majority,” which is how Justice Kennedy speaks of narrow 5-4 majorities of whose conclusions he does not approve) the Court thinks or feels it is. Absent these standards, we no longer have the rule of law or settled precedent, but rather that rule of judicial majorities, giving and withholding protection as they see fit. Many people might approve of the substantive result this time, but who knows where the next such decision will take us. That Anthony Kennedy thinks he knows what history tells us about the expanding and changing definition of liberty reveals a breathtaking (and, to my mind, entirely unwarranted) confidence in his judgment.

But, you might ask, isn’t the freedom to marry rooted in our traditions? Hasn’t the Supreme Court, in a number of cases cited by Justice Kennedy, upheld that very right? Well, yes, but the right to marry rooted in our traditions is the right to traditional marriage (that is, between a man and a woman). It isn’t the right to redefine marriage so as to encompass same-sex (and perhaps other) relationships. The problem with Justice Kennedy’s opinion is that his insistence that “the nature of marriage” involves two (and only two) people derives what force it has from the traditional understanding that “the nature of marriage” involved a man and a woman. Having jettisoned the tradition on one point in the name of an alleged individual right to marry whomever one pleases, it is hard, if not impossible, consistently to preserve it on another. Indeed, his mysterious understanding of liberty—“defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—would seem to leave more than enough room for each of us to form his or her own understanding of how and under what circumstances we wish to be related to others.

Now, as Justice Thomas points out in his dissent, the traditional understanding of liberty, by giving us a claim—albeit not an absolute claim—against government interference in our lives offers some, perhaps even much, of the freedom Kennedy has in mind. There’s a lot I can do with other consenting adults in the privacy of my own home. But as Kennedy recognizes, marriage isn’t just a freedom in this sense; there are all sorts of benefits, from tax advantages to child custody arrangements that accompany it, as well as an apparently publicly ascribed “dignity” that attends marriage, as opposed to “living in sin,” as we used, quaintly, to put it. So what’s at stake is not so much a liberty protected by the Due Process clause as equal access to benefits—leaving aside the issue of dignity, which makes for problems all its own—guaranteed by the Equal Protection clause.

Unfortunately, Justice Kennedy doesn’t undertake the kind of legal analysis that usually accompanies equal protection claims. There is no talk either of a “rational basis” for a legal distinction applied to an unprotected class of people or of the “strict scrutiny” of a distinction involving a protected class. To be sure, he has denied in past cases that laws that single out gays can have even a rational basis. Perhaps he doesn’t think he has to repeat himself here, as the irrational animus is, in his view, self-evident. But however much refusing to serve a gay in a restaurant or singling out for legal sanction expressions of gay sexuality may reflect such an animus, it is not at all self-evident that adhering to the traditional definition of marriage does so.

To be sure, there are plausible and perhaps even good arguments on both sides of the marriage issue. But those are arguments to be weighed and evaluated by a legislature, not settled conclusively by a court. By short-circuiting the political process, Justice Kennedy and his colleagues in the majority have forestalled a full and fair airing of the issues and have virtually guaranteed that those on the losing judicial side will question the legitimacy of the result so many of their fellows are celebrating. Further, those who approve of the result will be tempted to regard those who disagree with them simply as sore losers who don’t deserve any respect, which will serve only to poison still more of our public square.

There are other benefits as well that we’ve lost by not working this disagreement out legislatively. A legislature with men and women of good will on both sides might have arranged for robust guarantees of religious liberty for those who conscientiously dissented from a pro-same sex marriage outcome. And rather than opening up a Pandora’s box of different marital arrangements as Justice Kennedy’s conception of liberty does, a legislature might have carefully reworked the traditional definition of marriage to accommodate in some way the genuine personal challenges Justice Kennedy so eloquently describes at the beginning of his opinion. But feeling for the aggrieved and finding a way to help them is the work of legislators, responsible to the voters, not judges who serve for life.

That we have operationally and happily ceded so much truly legislative authority to unelected judges is, to my mind, the most troubling result of Obergefell. In my next post, I will discuss some of the religious liberty challenges that we will, in short order, face.


[1] Justice Kennedy was similarly disingenuous in Windsor v. U.S. (2013), which struck down the portion of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman. Marriage, he averred, was traditionally understood to be a state matter, which was convenient at the moment, but swept away with nary a mention in Obergefell.

Faith-Based Organizations, SOGI, and the Federal Government

Chain of people holding hands, paper cut-outs

Last summer, the Obama Administration proposed a rule adding sexual orientation and gender identity (SOGI—get used to the acronym) to the list of classes protected against discrimination by federal contractors. In so doing, it built upon other anti-discrimination executive orders issued by Presidents Johnson and Nixon. The difference between the Obama Administration’s rule and those promulgated by its predecessors is that the latter explicitly provided exemptions for religious employers, who were permitted to engage in mission-sensitive hiring even if they provided goods and services to the federal government. Under the old rules, a faith-based organization could hire co-religionists to work, for example, in a federally-funded Welfare-to-Work program (and, of course, could quite rightly not discriminate in providing benefits to clients). Under the new rules, finalized in April, there is no exemption for faith-based organizations, many of whom would seem to have to abandon their historical commitments to sexual fidelity in the context of man-woman marriage if they wish to continue to be eligible for federal contracts.

And now the other (or another, perhaps the first of many) shoe is about to drop: there is word that the rule applied to federal contractors will soon be extended to grant recipients, at least in respect to one area of federal activity, humanitarian aid. As this move has not received a lot of attention (perhaps designedly so), it is not clear how far-reaching this change is. At the moment, it seems relatively safe to say that eligibility for some grants will likely be conditioned on a renunciation of traditional religious teaching (not just Christian, but also Jewish and Muslim) regarding human sexuality.

What prevents the Obama Administration from extending this requirement to additional categories of grant recipients is not at all clear. Or rather it is clear: only pushback from the friends of religious freedom will prevent the federal government from eventually conditioning all federal aid on “non-discrimination,” even at the expense of fidelity to traditional religious teaching.

How far could this eventually go? Consider, for example, the extraordinarily heavy dependence of most colleges and universities (there are a few noteworthy exceptions, among them Grove City, Hillsdale, and Wyoming Catholic) on federal aid. Suppose that colleges and universities that included behavioral expectations in their statements of faith were told that they could not hold their employees to these expectations, as doing so would constitute SOGI-based discrimination. Some might stand firm and join the proud ranks of the non-federally funded. Others, I fear, would feel compelled to assure their (merely) institutional survival by giving in. The result would likely be a much less genuinely diverse array of higher education options and a loss of a great intellectual and moral source of religious life in this country.

And that’s not the end of it. Don’t forget the brief exchange between Justice Samuel Alito and Solicitor General Donald Verrilli in the oral argument for the Obergefell v. Hodges (same-sex marriage) case. Under questioning by Justice Alito, Verrilli conceded that the tax-exempt status of religious institutions that did not recognize same-sex marriage could or would be an issue. For those who regard tax exempt status not as an acknowledgement of freedom from state interference but as an instrument of public policy, aimed at promoting the public good (as they conceive it), it’s only a few baby steps from denying government funding to revoking a tax exemption. I’d like to think that many of us will continue to give at the same level to the charities we favor regardless of whether we receive a tax break for doing so, but not all of us will. At the very least, roughly 30% of that charitable contribution would likely be taken by taxes, and that’s only from the contributor. Another chunk would be taken from the formerly tax-exempt institution. Is your favorite faith-based institution prepared to deal with the loss of a significant portion of its annual budget?

Some might argue that it’s healthy and bracing for faith-based institutions to get back to basics, to have a fresh and direct experience of what it means to be a pilgrim, sojourner, or (as Duke University theologian Stanley Hauerwas is fond of putting it) resident alien. Perhaps. Even more, it might be clarifying for the soulless Leviathan of the ever-expanding modern regulatory and administrative state that would reveal itself for the secularizing monster it really is. Perhaps.

But pardon me for continuing to harbor the hope that genuine religious pluralism that flourishes in a healthy civil society is good not only for the churches, synagogues, mosques, temples, schools, colleges, universities, and charities that inhabit it, but also for the country that plays host to them.

That is what is threatened by the Obama Administration’s narrow and crabbed vision of, if not actual disrespect for, religious liberty. We face the prospect of a secular (which is not the same as neutral) state whose reach into our lives and communities is constantly expanding, not as a partner with distinctive and diverse local institutions and organizations, but as their master, dictating the terms on which they will serve the needs of those who use and depend upon them. The genuinely distinctive—religiously and morally traditional—institutions will be treated, not as partners, but as adversaries, at best pushed to the margins, at worst run out of business.

I hope and expect all institutions will love and serve all of God’s children, but will defend their right to do so in ways that are faithful to their understanding of Scripture.