By: Matthew J. Frank
Obergefell v. Hodges, the pending Supreme Court case on same-sex marriage, is the year’s most closely watched case among advocates of religious freedom. Yet it is doubtful that considerations of religious freedom, or questions of individual conscience, will enter into the central reasons for judgment given by the justices in deciding the case. Such considerations may not even be mentioned at all in the opinions of the justices.
There would be good reason for such neglect. For the Obergefell case can and should be properly decided with no reference whatsoever to religious freedom. The controversy presents two legal questions: whether every state is obligated by the Constitution to issue marriage licenses to same-sex couples on an equal footing with opposite-sex couples, and whether every state must recognize same-sex marriages lawfully entered into in other jurisdictions. (A “yes” answer to the first question would obviate the necessity of answering the second.)
At the heart of the case, which tests the constitutionality of recent state laws and constitutional provisions restricting recognition of marriage to the conjugal union of one man and one woman, is the freedom of the American people and their elected representatives to express and enforce a moral norm about the nature of marriage in the laws they make. If the Supreme Court invents a right of same-sex marriage—and invention it would surely be—the first casualty would be the rightful authority of the citizens who constitute the American democracy to govern their affairs on the very first of their fundamental social institutions: the family that is founded on conjugal marriage.
Many Americans have gone to the polls in the last two decades to vote for representatives, or to cast ballots directly as citizen legislators, to protect the institution of marriage from culture warriors and activist judges (who are often the same people). In so doing, many citizens have been guided by what their faith teaches them about the meaning of marriage as a sacred institution as well as a natural and social one. The faith traditions so moving these voters vary widely, suggesting that what unites them all is a shared “natural law” understanding of marriage that meshes readily with the scriptural and revealed aspects of their faith.
It is possible that the Supreme Court, like some lower federal and state courts, might respond to the fact of these various religious “motives” by suggesting that they are an improper basis for legislation under some understanding of “separation of church and state.” This would be an improper introduction of a religious issue into the case, resting on an erroneous reading of the First Amendment’s protections. Indeed, it would be an affront to our constitutional principles rightly understood, as well as an unwarranted attack on the place of religion in the American public square.
Many of our laws protecting persons, property, and relationships such as marriage and family vibrate on the same wavelength as religio-moral precepts found in many traditions (e.g., “thou shall not steal”). A ruling that one such law is illegitimate because of its supporters’ religious faith in its truth and propriety would logically endanger all such laws. Moreover, there are supporters as well as opponents of same-sex marriage who feel strongly about the issue precisely because of their faith commitments, yet no one has so far suggested that recognizing same-sex marriage would “establish” the religion(s) of its supporters.
So much for the primary effect of a ruling that redefines the law of marriage under the guise of the Constitution. But many opponents of such redefinition reasonably fear potentially devastating secondary effects. These effects are unlikely to be mentioned prominently in any of the justices’ opinions in Obergefell, although a ruling in favor of same-sex marriage might prompt one or more dissenting justices to highlight the problems it could generate for religious liberty. Already in several states with same-sex marriage, or related protections against discrimination on the basis of “sexual orientation or gender identity” (SOGI), the proprietors of small businesses catering to the wedding trade have been targeted for fines or other punishments for following their religiously informed consciences by declining to provide goods or services for same-sex couples’ weddings or other civil union ceremonies. In no case has any such refusal of service turned on anyone’s sexual orientation as such—only on the service provider’s religious understanding of the true meaning of marriage.
Some “moderate” supporters of same-sex marriage have suggested very limited “accommodations” for religious conscience in the context of wedding ceremonies—excusing this or that county clerk from solemnizing a civil marriage, for instance, or protecting church-owned properties from compulsory availability for same-sex union celebrations. But all such proposals of which I am aware are confined to “wedding day” circumstances. When the cake has been eaten and the rice swept up, what of the ongoing recognition of marital status by various private actors, whether individual, commercial, or institutional, moved by faith and bound by their consciences?
Here we enter legal territory obscured by very cloudy skies. Solicitor General Donald Verrilli, for instance, when queried by Justice Samuel Alito during the April 28 oral argument in Obergefell, admitted that in the future, the tax-exempt status of private nonprofits with a religious character (which may include schools, colleges and universities, hospitals, charities, and social service agencies in the private sector) could be in jeopardy if they decline to recognize the marital status of same-sex couples in their private dealings with them. The forms of such dealings are as manifold as the nonprofits themselves, encompassing employees and their dependents, students, parents, patients, and clients of all kinds. And federal (as well as state and local) tax-exempt status is not contingent on receipt of public funds through contracts or grants, and so no effort of religious or other private nonprofits to shield themselves by accepting no such funds would avail them in this respect.
Even well short of such a threat to tax-exempt status being carried out, there are many ways in which “para-church” institutions of every kind, as well as privately held businesses and individuals, could find themselves caught in legal pincers by a redefinition of marriage. Licensure, accreditation, application of “civil rights” norms of law, and other uses of public authority can impinge on the felt obligation to follow one’s conscience and the dictates of faith. It would be worse than ironic—it would be truly tragic—if an invented right of same-sex marriage, imposed on the nation by judicial usurpation of the people’s authority, were to be employed to trump the rights of religious freedom and conscience that have been part of the American legal and political fabric since the founding of our country.
Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute and a visiting lecturer in Politics at Princeton University.
This piece was originally authored on June 24, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.