In light of Indiana's passage of an amended state-level version of the RFRA, Cornerstone asks this week's contributors to address the following questions: To what extent should the religious freedom of small business owners protect them from having to act against their consciences? Would such protections open the door to wide-ranging and unjust discrimination against homosexuals, as many fear? What does a cost-benefit analysis reveal about RFRA legislation on the state level? What is at stake in Obergefell v. Hodges, and how does the case relate to state RFRAs? To what extent would a Supreme Court decision in favor of same-sex marriages impede free religious exercise?
By: Ryan T. Anderson
Last Tuesday’s oral arguments at the Supreme Court were excellent. There were so many good points made about what marriage is and why redefining marriage would cause harms.
This serious consideration of the harms of marriage redefinition stands in stark contrast to outrageous lower court rulings that had declared no rational basis to state marriage laws defining marriage as it always had been in America: a union of husband and wife.
Most importantly, it was clear that the nine Supreme Court justices do not have any greater insight on ideal marriage policy than do ordinary American citizens. The Constitution itself is silent about it. So the justices should uphold the authority of citizens and their elected representatives to make marriage policy in the states.
Here are some of the best portions of the arguments.
What Is Marriage?
Justice Anthony Kennedy pointed out that thinking marriage is the union of a man and a woman “has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.”
Chief Justice John Roberts noted that “Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife.” So he pointed out: “you’re not seeking to join the institution, you’re seeking to change what the institution is.”
How much experience do we have with redefined marriage? Twice Justice Scalia pointed out that there wasn’t “any society, prior to the Netherlands in 2001, that permitted same-sex marriage.” Justice Kennedy seemed reluctant to judicially redefine marriage as well. Even Justice Stephen Breyer got in on the act, noting that marriage understood as the union of a man and a woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change…what marriage is.”
Not Anti-Gay at All
Justice Samuel Alito pointed to a near universal historical consensus about what marriage is, and asked if the lawyer was seriously going to argue it resulted only because of anti-gay sentiment.
Support for marriage as the union of a man and a woman can’t simply be the result of anti-gay animus, Alito pointed out, because “there have been cultures that did not frown on homosexuality.... Ancient Greece is an example. It was well accepted within certain bounds.” And yet, ancient Greece and people like Plato never thought a same-sex relationship was a marriage. Alito concludes: “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”
Chief Justice Roberts highlighted another important clarification: What petitioners are arguing for in this case is not freedom from government, but government affirmation. Roberts explained that in a previous Supreme Court case, “the whole argument is the State cannot intrude on that personal relationship.” Now people were suing saying “the State must sanction. It must approve that relationship. They're two different questions.” Just so.
John Bursch, the lawyer who defended the marriage laws in Michigan, echoed this point. Bursch was also emphatic in pointing out that this was not about demeaning gays and lesbians: “The State of Michigan values the dignity and worth of every human being, no matter their orientation or how they choose to live their life. That’s not what this case is about.”
Bursch explained that “the marriage institution did not develop to deny dignity or to give second class status to anyone. It developed to serve purposes that, by their nature, arise from biology.”
Serving the Purposes of Marriage
What are those purposes? As far as the government is concerned, there is no benefit to promoting or affirming consenting adult romance for its own sake. But there are incalculable social benefits to uniting mothers and fathers with each other and with their children.
Although they may not appear overnight, reducing the definition of marriage to a mere emotional commitment would have wide-ranging long-term consequences, as several amicus briefs clearly articulated.
Bursch asked the justices to consider two married couples with a three-year-old child:
“One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together. A reasonable voter, which is what we’re talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems. Ideas matter.”
Ideas do matter. And citizens should be able to make marriage policy themselves, not have unelected judges insert their own policy preferences while claiming the Constitution requires them. After all, as Bursch explained, “if you're changing the meaning of marriage from one where it's based on that biological bond to one where it's based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids.” And “over decades, when laws change, when societal views on marriage change, there are consequences to that.”
Allowing Democracy to Work Out Marriage Policy Makes Better Policy and Civil Peace
But what happens if the Court doesn’t respect the authority of citizens to make marriage policy in the states? Chief Justice Roberts noted that a court-imposed fifty-state solution would not lead to civil peace, but to anger and resentment. If the Court unilaterally redefined marriage, “there will be no more debate.” And this would cause problems: “closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”
Nowhere are the consequences of redefining marriage clearer than in the realm of religious liberty. When pressed by Justice Alito, the Obama administration’s Solicitor General himself, Donald Verrilli, admitted that religious schools that affirm marriage as the union of a man and a woman may lose their non-profit tax-exempt status if marriage is redefined.
Scalia also asked about the religious liberty concerns that would arise if the Supreme Court creates a constitutional right to same-sex marriage. When the lawyer replied that we hadn’t seen many religious liberty violations in the states that have democratically redefined marriage, Scalia pounced: that’s his point. Here’s how he explained it: “They are laws. They are not constitutional requirements. That was the whole point of my question. If you let the states do it, you can make an exception…. You can’t do that once it is a constitutional proscription.”
If the Court Redefines Marriage, What’s the Limiting Principle?
It’s not only religious liberty that will be threatened, but future redefinitions of marriage will also be demanded. If “equality” requires redefining marriage in all fifty states to include same-sex couples, what else does “equality” require? Justice Alito posed an important hypothetical, saying, “a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?”
If you redefine marriage to say it’s just about consenting adult love and caregiving, why not include the foursome?
Pursuing this same line of thought further, Alito asked about other types of couples. How about siblings?
Good question. Once you say “equality” requires radical redefinitions of marriage by courts—not citizens—you never know what the end result will be.
Laboratories of Democracy: Wait and See
Rather than rush to a fifty-state “solution” on marriage policy for the entire country, the Supreme Court should allow the laboratories of democracy the time and space to see how redefining marriage will impact society as a whole. There is no need for the Court to “settle” the marriage issue in the same way that it tried (unsuccessfully) to settle the abortion issue.
Because the Supreme Court cut the democratic process short on abortion, there is no issue less settled in American public life than abortion. Our politics on abortion are so polarized because the Court didn’t allow the democratic process to work. Why would the Court want to repeat that mistake?
Justice Kennedy seemed aware of this potential consequence of the Court rushing to judgment. Kennedy pointed out that the short period of time that same-sex parenting and same-sex marriage have existed prevents us from knowing their true outcomes.
Clearly, we need to wait and see what the consequences of redefining marriage will be. And that’s why the Court shouldn’t attempt to settle this once and for all. Allowing marriage policy to be worked out democratically will give citizens and their elected representatives the freedom to arrive at the best public policy for everyone.
If the Court tries to settle this itself, it’ll simply launch a culture war like it did in Roe. Thankfully, the Constitution doesn’t require the redefinition of marriage—and hopefully the justices will say as much.
Ryan T. Anderson researches and writes about marriage and religious liberty as the William E. Simon Fellow at the Heritage Foundation.
This article first appeared in a longer format in Public Discourse on April 30, 2015. It was later reposted on May 11, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.