Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, July 6, 2015

CLS Panel: Obergefell and Future Challenges to Religious Liberty

This past Wednesday I participated in a panel on Obergefell v. Hodges hosted by the Christian Legal Society in Chicago.  I actually prepared two talks: the first was an analysis of the highlights of the majority decision; the second was a discussion of the challenges that the decision will pose for religious liberty in the future, as well as a discussion of how it will be more difficult to change the conversation about same-sex marriage following Obergefell than it was to change the conversation about abortion following Roe.  The second part (which I did not deliver due to time constraints) appears below.  I’ll post the first half (which I did deliver) later in the week.



(1)  First, as concerns religious liberty, Obergefell will present a number of challenges for those faith communities, religious organizations, institutions, and individuals who subscribe to the traditional, conjugal definition of marriage involving sexual complementarity in the union of one man and one woman as husband and wife, father and mother.  Some of these challenges we have already seen in the past several years leading up to this moment: the use of public accommodation laws to punish those who refuse to participate in same-sex marriages on religious grounds (i.e. I have in mind Elane Photography in New Mexico, Masterpiece Cakeshop in Lakewood, Colorado, Arlene’s Flowers in Washington State, and other business owners who have refused to make use of their expressive talents in support of a view of marriage that they oppose as a matter of faith, see here).  We have also seen it in the exclusion of religious social service agencies that engage in adoption and foster-care services but which refuse to place children with same-sex couples on the basis of religious conscience.

Other areas will emerge in the near future: (1) the denial of tax exempt status for religious bodies, schools, and other institutions that refuse to recognize same-sex marriage in their policies with respect to their employees, students, and faculty, in the same way that tax exempt status was denied to the two schools in Bob Jones University v. U.S. that discriminated against African-Americans in admissions and prohibited inter-racial dating – something that Solicitor General Donald Verrilli hinted at in the Obergefell oral arguments [Addendum: In the link to Paul Caron that Rick provided Paul says that “Catholic colleges are unlikely targets for those who want religious colleges to fully respect gay and lesbian marriages.”  This may be true of institutions like Notre Dame and the various Jesuit universities that already hire gay and lesbian faculty and extend benefits to them and their partners, but not so of smaller institutions like Thomas More College, Thomas Aquinas College, and Christendom College.]; (2) the withdrawal or denial of accreditation for religiously affiliated schools and universities by accrediting bodies; (3) challenges to the married student housing policies of religious colleges and universities (something specifically mentioned in Roberts’s dissent); (4) the banning of student clubs in public schools and universities that support traditional marriage and the institution of student speech codes that punish the defense of traditional marriage as a kind of “hate speech”; (5) mandatory education concerning the validity of same-sex marriage, not only in public schools, but in private schools and even for children educated in a home-school setting, notwithstanding Pierce v. Society of Sisters.

 Although any effort to force a religious minister or congregation to conduct a same-sex “marriage” ceremony or bless a same sex union as a “marriage” as part of its beliefs or practices has virtually no chance of succeeding under First Amendment doctrine, one can easily envision (6) the exclusion of ministers and other religious figures who refuse to perform same-sex weddings from conducting religious weddings that are also recognized civilly.  Similarly, it is easy to foresee (7) efforts to deny professional licenses to practice medicine, law, counseling and perhaps other fields for those who fail to recognize same-sex marriage; (8) the exclusion of dissenting employers from eligibility for government contracts; and relatedly (9) an effort to nullify morality clauses in employment contracts through which religious employers can dismiss employees who fail to abide by their religious tenets by three methods: (i) by enacting anti-discrimination laws that contain no exemption for religious employers, (ii) by narrowing or eliminating the ministerial exception to anti-discrimination laws under the First Amendment recently reaffirmed in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC­, and (iii) by expanding the public policy exception in contract law so as to void those contract provisions that permit religious employers to dismiss employees on the basis of religious morality (Nb. The inclusion of such clauses is standard practice throughout the nation’s Catholic dioceses).

One can even envision (10) a state requirement that adoption agencies in the process of placing children with adoptive parents consider same-sex married couples equally with heterosexual married couples even to the point of disregarding a birthmother’s preference for a traditional, married couple, and the disqualification of those couples seeking to adopt who refuse to acknowledge the validity of same-sex marriage.

I am not suggesting that each of these measures would succeed as a matter of legal doctrine, nor am I suggesting that political opposition to such measures might not thwart the efforts of same-sex marriage proponents to ensure the kind of universal recognition of same-sex marriage by private actors that they seek.  I am saying that there will be a head-on collision between religious liberty and the newly created right to same-sex marriage on numerous fronts, and that resisting these efforts will require tenacity, skill, and resources.  Resisting these efforts will require faithfulness and sacrifice.

In addition, recognition of same-sex marriage as constitutionally mandated will be a basis for not considering numerous possible nominees for judgeships and other appointed positions in government, as well as a basis for voting down such nominees when they are put forward.  The cultural pressure not to hire, promote, or be affiliated with proponents of traditional, conjugal marriage will become commonplace (as evidenced, for example, by the campaign against Brendan Eich resulting in his stepping down as CEO of Modzilla), a point made by both Roberts (pp. 27-28), and Alito (p. 6), the latter of whom specifically predicted that the majority’s comparison of traditional marriage laws and laws discriminating against African-Americans and women is an analogy that “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” an analogy that “will be exploited by those who are determined to stamp out every vestige of dissent.”

All of these moves, if not already in the works, are visible on the horizon as the movement for LGBT rights enters its next phase, the goal of which is not merely formal, legal equality, but cultural acceptance and affirmation that will brook no exception.  A virulent intolerance carried out under the banner of tolerance is well underway, and traditional religious teachings on marriage and sexuality and those who adhere to these teachings are among its primary targets.  If it achieves its objectives this movement will succeed in reducing “religious freedom” to “freedom of worship” where religious believers are free to conduct whatever religious rituals they wish in the confines of their churches, synagogues and mosques, and in the privacy of their own homes, but they dare not make their views known beyond these private spaces.  Instead of a capacious religious liberty to believe and to act on those beliefs, the end result will be not merely a naked public square, but one from which the adherents of traditional religious morality are effectively banished as cultural pariah.

(2)  Second, because comparisons have been made between Obergefell and Roe and indeed, some like the Heritage Foundation’s Ryan Anderson have called for a response to Obergefell analogous to the response to Roe that we have witnessed over the last forty years (a response that has involved many religiously motivated people), I think it is important to point out some of the differences that may make generating such a response more difficult.

(i)  Rousing the same kind of interest in overturning Obergefell that the pro-life movement has succeeded in generating in overturning Roe will be difficult.  In the case of Roe, most people knew, at least on an intuitive level, that the life of a human being – an unborn child – was at stake, notwithstanding the abortion industry’s characterization of the “thing” being disposed of as only a “clump of cells” and the Court’s consigning the unborn to the status of mere “potential life.”  Indeed, the widespread recognition of the humanity of the child growing in the womb is in fact why so many women faced with unwanted pregnancies find the decision so wrenching, and often experience depression and the searing pain of regret in the aftermath of an abortion.  Convincing the wider public (if not the ideologues of “choice”) of this fact has been aided by both the extreme position of the abortion lobby (e.g. opposing limitations on the gruesome practice of partial-birth abortion) and advances in science (e.g. ultra-sound technology).  More work remains to be done, but much of the public has been nudged by the persistent efforts of the pro-live movement to see and accept what they already knew, notwithstanding the simultaneous ongoing propaganda of the abortion industry. 

The chances of effecting a similar change in perspective with respect to same-sex marriage are unlikely for several reasons.  First, the challenge of the pro-life movement was to convince the public that the life of a person other than the pregnant woman was at stake.  The challenge was to convince the public that the abortion procedure was not costless – that the “right” to abortion resulted in an injustice – that it had a victim!  The movement in favor of same-sex marriage has proceeded along the same lines: showing an initially skeptical public the human dimension and the ostensible injustice of denying loving same-sex couples access to marriage.  The movement succeeded in putting the issue in concrete terms: giving it a human face and making plain the consequences of denial of the right – portraying same-sex couples as the victims of injustice.

It will be far more difficult to explain to the public how extending marriage rights to same-sex couples will result in injustice.  The usurpation of democracy – removing the power to define marriage from the people and their elected representatives – is, under our constitutional system, a kind of injustice that Obergefell ushers in (a point that is a focus in each of the four dissents), but it is relatively abstract.  It is a denial of process not substance – of who decides and not what is decided.  Sadly, given the sad state of democratic culture in American society – the lack of political engagement – this injustice is not likely to gain much traction outside elite circles.  Even then, the outrage occasioned by such anti-democratic overtures often tends (rather cynically) to be somewhat selective, depending on whether or not one agrees with how the issue was resolved.

The substantive injustice at stake – the claim that extending marriage to same-sex couples will harm the public good by affecting contemporary marriage culture, by falsely teaching the public that marriage is a genderless institution, that mothers and fathers are optional, that the presence or absence of a mother or a father will have no effect on the children raised, and communicating to the children of same-sex couples who experience the absence of a mother or father as a loss that their feelings are not legitimate – is an abstract point easily intuited but not easily demonstrated in the short-run.  Cultural changes take time.  That the sky is not falling the week after same-sex marriage became a federal constitutional right, or even ten years after the Goodridge decision in Massachusetts, is not proof that the redefinition of marriage will not have a profound adverse effect on the public perception of marriage and its incidence.  But the proof that is accumulated through empirical study (if it is allowed to move forward in an unbiased fashion) will not be available in time for the next news cycle.

Even if such sociological proof is forthcoming, the opponents of Obergefell will still have to contend with the use of relatively dry facts and figures against the face of happy couples raising their children.  Simply put, the optics will not favor a change of opinion in the wake of Obergefell, whereas the revised optics in the years following Roe did.  Add on top of this the general “live and let live” attitude of most Americans (the idea that so long as your plans and activities don’t interfere with my life, you should be free to live as you choose) and the personal investment that the relatives of men and women in same-sex marriages will have in the normal status of their loved ones' arrangements, and the struggle to change hearts and minds will be a monumental task.

(ii) In setting forth the right of a woman to terminate her pregnancy, the Roe majority, in its tortured trimester approach, at least acknowledged that there are interests at stake other than the woman’s desire to be achieve the demise of her would-be progeny, viz. the competing State interests in maternal health and fetal life.  There is no similar acknowledgement in Obergefell.  There is only the interest of same-sex couples to avail themselves of the same right to marry enjoyed by opposite-sex couples.  As noted a moment ago, Kennedy’s opinion refrains from describing laws that reflect traditional marriage as “irrational” or as hate-filled ordinances designed to hurt (though he believes that they have the effect of “demeaning” same-sex couples).  Still, the absence of any acknowledgement of interests on the other side gives opponents of the new regime very little room to operate.

Toward the end of his opinion Kennedy tries to assure religious adherents that they may continue to advocate that “same-sex marriage should not be condoned” and that the First Amendment “ensures that religious organizations and persons” will still have the freedom “to teach the principles that are so fulfilling and so central to their lives and faiths” (p. 27).  But this offers little solace.  That religious persons and organizations may teach the truth about marriage according to their religious beliefs does not mean that they may live out their beliefs in other respects (an important point that Thomas notes in his dissent, pp. 14-16).  Kennedy's limited language speaks of the freedom of religious belief, not the broader, more traditional notion of religious liberty where a person is free to act on his beliefs in the world. 

(iii) Finally, following the Supreme Court’s decision in Roe, a number of measures were enacted that helped to protect the consciences of those who objected to abortion.  The Church Amendment, and later the Hyde-Weldon Amendment, and numerous other conscience protection measures (see here) were enacted to protect those who object to abortion on religious or moral grounds from being made to participate or from having their beliefs used against them in employment decisions.  Moreover, especially early on, before abortion became a largely partisan issue, these measures enjoyed broad support from members of both parties.

It is unlikely that the constitutional right to same-sex marriage will meet with a similar legislative response if for no other reason than for this: The beneficiaries of the right in Roe (women wishing to terminate their pregnancies) could still exercise the right granted even if some hospitals, physicians, and other healthcare workers opted out on religious grounds.  So long as others remained willing and available to perform the desired procedures, the right could still be exercised.  Women who sought abortions were relatively indifferent to the reactions of those around them so long as the freedom remained unimpaired.

Not so with the interest at stake in Obergefell.  While the right to marry may be exercised so long as some individual licensed by the State to officiate the ceremony is available, that, standing alone, is not the only interest that Obergefell seeks to vindicate.  Rather, the interest at stake is public acknowledgment and approval that brings with it dignity and self esteem.  The goal is cultural transformation.  But this can only be attained if erstwhile dissenters are made to bow in homage to same-sex marriage.  What is really at stake is not merely the right to marry to which others may react with indifference.  What is really at stake is recognition and acceptance – a point brought into clear relief in the case of the photographer, the baker, and the florist who declined to take part in same-sex wedding ceremonies.  The same-sex couples could have simply turned to other vendors.  Instead, they sued to make those who claimed religious conscience to bend the knee or pay a heavy price.  Thus, it is unlikely that the holders of this new-found right will be inclined to support laws that perpetuate and institutionalize indifference.  As Kennedy notes “Dignitary wounds cannot always be healed with the stroke of a pen” (p. 25).

On the contrary, efforts will be made to repeal or curtail those conscience protection measures currently in place, such as the federal Religious Freedom Restoration Act and analogous legislation in the States.  If the hysteria and demagoguery that was on display with respect to the recent Indiana Religious Freedom Restoration Act is any indication, then religious dissenters will face a much more difficult time than those who responded to Roe.


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