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November/December 2015

Discover more articles from this issue.

Behold the Man

I was happy to see the pope treated with such dignity, even as I was uncomfortable at any religious leader being given a political pulpit.

Courtship Between Church and State

Pope Francis l made history and challenged the United States constitution by his visit.

Terrorism in Canada

Continuing violent threats to liberty north of the border.

Our Common Home

The ecological logic for mixing politics and religion.

Thou Mayest

East of Eden and Steinbeck's discovery of liberty in Scripture.

Perception and Reality

A Supreme Court ruling confirms gay marriage and questions religious liberty.

Magazine Archive »

Published in the November/December 2015 Magazine
by Alan E. Brownstein

The Supreme Court’s 5-4 ruling last month in Obergefell v. Hodges,1 holding that state bans on same-sex marriages violated the Fourteenth Amendment, was undoubtedly an important constitutional decision. It meant different things for different parties. Three of the dissenting justices, 2 along with many commentators, noted their grave concerns that Justice Anthony Kennedy’s majority opinion will lead to serious government interference with the religious liberty of Americans who believe as a matter of religious conviction that same-sex marriages violate God’s law. Of course, among those who worked to promote marriage equality and the rights of the LGBT community, Obergefell was reason to celebrate.

It’s not that easy to isolate and evaluate the effect this decision will have on religious liberty. Concerns about conflicts between religious freedom and laws protecting same-sex couples against discrimination are nothing new. They predate Obergefell by a decade. Over that time period, there has been a dramatic cultural and political shift in attitudes in favor of same-sex marriage. Demographics strongly suggest that support for same-sex marriage will continue to increase. To be sure, Obergefell may accelerate cultural and political support for same-sex marriage, but its holding is hardly responsible for this dramatic change in perspective.

It is true, of course, that the decision requires the governments of all states to recognize same-sex marriages now. Thus, today there are more jurisdictions in which religious opposition to same-sex marriages may generate legal conflicts.3 This change in constitutional law, standing alone, may burden some religious individuals. State employees—such as county clerks, for example—may be required to issue marriage licenses to same-sex couples notwithstanding their religious objections to doing so.

Much of the disquietude expressed about Obergefell’s impact on religious liberty, however, does not focus on government employees. Most of the potential burdens on religious liberty identified by courts and commentators involve the adoption of statutes and regulations that prohibit discrimination against same-sex couples by private sector professionals, proprietors, employers, businesses, and religious institutions. The enactment of such laws—and the refusal to grant religious exemptions from them—is a matter of political will, not constitutional law. The real concern of Obergefell’s critics is that the Court’s opinion itself may encourage society to be less tolerant of religious opposition to same-sex marriages. If the Court’s decision persuades more Americans to believe that same-sex marriages are both morally acceptable and deserving of legal respect, arguably there will be less sympathy for granting exemptions to religious individuals or organizations holding contrary beliefs.

One would think that the first and best place to look to determine the effect of Obergefell on religious liberty is the opinion itself. But a word of caution is necessary here. Very few Americans actually read Supreme Court opinions—even groundbreaking ones such as Obergefell. They rely on media and commentary to interpret judicial decisions for them. In the case of Obergefell, many accounts of the case (wrongly) suggest that the decision is grounded on equality principles and declares that discrimination against gays and lesbians is unconstitutional. If people believe that, this is what the case will be understood to mean.

In fact, however, the majority opinion in Obergefell does not say that discrimination against gays and lesbians violates the Fourteenth Amendment. Indeed, it really says very little about equality at all. It certainly does not say that gays and lesbians are a quasi-suspect or suspect class or that classifications based on sexual orientation should be as rigorously reviewed as racial or gender classifications. Unlike many lower federal court decisions that struck down same-sex marriage bans, the Obergefell opinion does not discuss conventional equal-protection doctrine at all.

Instead, Obergefell holds that bans on same-sex marriage violate the “substantive due process” right to marry. The focus is on personal liberty, not group equality. Same-sex marriage bans are unconstitutional because they abridge the fundamental right of privacy and personal autonomy that encompasses the right to marry. Much of Justice Kennedy’s opinion expresses a powerful vision (often in lofty and eloquent language) of the meaning and value of marriage, and it describes the unavoidable material and dignitary harm couples will experience who are denied that status. There is only the most cursory description of the history and scope of discrimination directed at gays and lesbians throughout American history.

To the extent that Justice Kennedy talks about equality at all, he discusses equal treatment with regard to the exercise of a fundamental right. Whereas core equal-protection doctrine focuses on laws directed at who a person is (a woman or an African-American, for example), this due-process/equal-protection analysis applies only to the right a person exercises.

What does this distinction between liberty and equality rights have to do with the likely impact of Obergefell on religious liberty? To begin with, it means that this case, important as it is, is limited in its scope. It does not extend beyond the right to marry. Its holding does not require religious individuals or institutions to alter their conduct toward gays and lesbians or same-sex couples in any other context. Moreover, the role of government with regard to liberty rights has historically been different than its role when equality rights are at issue. Generally speaking, the government mandate with regard to liberty rights is one of noninterference. Government should keep its hands to itself and leave the exercise of fundamental rights to private decision-making and ordering. Equality rights are different. Here, government is already involved in regulating or providing benefits to private activities and must restructure what it is doing to achieve constitutionally required equality. Put simply, the government is more likely to interfere in private affairs when it attempts to further equality principles. It is no accident that the case that fuels the most fear about intrusions into religious liberty, Bob Jones University v. United States,4 involves a compelling state interest grounded in racial equality, not in the promotion of some personal liberty interest.

Also, in analyzing alleged abridgments of a liberty right, the Court usually focuses on the importance of the right. In equality cases its emphasis is on the biased motives of the majority in enacting the challenged law. Thus, opponents of same-sex marriage are more likely to have their beliefs impugned and their interests ignored if bans on same-sex marriage are understood to be manifestations of invidious discrimination that violate equal-protection guarantees rather than abridgments of personal liberty violating substantive due process. If the danger to religious liberty from Obergefell arises from the message it communicates about opponents of same-sex marriage, that danger is reduced considerably by the majority’s decision to base their analysis on a substantive due-process foundation.

This distinction is apparent if we compare Justice Kennedy’s opinion in Obergefell with his opinion in United States v. Windsor 5 (the case that struck down DOMA, the Defense of Marriage Act) two years ago. Windsor was more of an equal-protection case. A core component of its analysis was the Court’s determination that the supporters of DOMA were “motivated by an improper animus or purpose.”6 The mean-spirited intent of the statute—to demean and disparage same-sex couples—was constitutionally impermissible and required its invalidation. Kennedy’s language is starkly different in Obergefell. Here, Kennedy writes that the belief underlying opposition to same-sex marriage “has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”7

It is also useful to read Obergefell together with Loving v. Virginia,8 the 1967 case striking down bans on interracial marriages. Loving is primarily a conventional equal-protection, race-discrimination case. The Court describes Virginia’s anti-miscegenation law as a racial classification, “odious to a free people.”9 The reasons for adopting the law were “obviously an endorsement of the doctrine of White Supremacy.”10 The law had no purpose other than “invidious racial discrimination.”11 In Obergefell, by comparison, Kennedy writes that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”12 It is inconceivable that anyone on the Court would use such language to describe the racist beliefs condemned in Loving.

Surprisingly, the dissenting justices in Obergefell reject the hand of mutual respect that Kennedy extends to opponents of same-sex marriage. They insist that his opinion is disparaging of opponents of same-sex marriage and that it will be used aggressively to deny religious liberty to anyone seeking an accommodation of their religious beliefs. Justice Kennedy’s respectful language is allegedly nullified13 by his statement that when sincere personal opposition to same-sex marriage is enacted into law, it places the imprimatur of the state on an exclusionary policy that necessarily “demeans or stigmatizes those whose . . . liberty is denied.” 14

Recognizing that the effect of a law may be stigmatizing or demeaning, however, does not mean that the law was intended to have that effect. This idea is subtle, but it is important. Sometimes proponents of a law focus so much on the law’s benefits that they fail to accurately appreciate its harm or costs to third parties. That is different than animus—where the purpose of the law is to inflict harm on a despised group. Similarly, a commitment to sacred and traditional understandings of a social institution may reflect primarily reverence for the role that understanding plays in a complex theology or worldview. It is possible to respect adherents of that understanding while acknowledging the problematic consequences that result from enacting it into law.

Justice Kennedy’s analysis here focuses on the difference between private belief and state action. Beliefs may be benign when they are accepted by, and limited to, individuals and private communal institutions, but have very different meaning and consequences when they are codified into law. A religious community that will not sanctify a same-sex marriage in its house of worship is fundamentally different than a state that will not recognize a same-sex marriage anywhere.

James Obergefell (center) outside the Supreme Court, June 26, 2015, following the historic decision.

Indeed, this distinction is intrinsic to religious pluralism in the United States. Most religions are exclusionary to some extent. That is accepted as a matter of private belief. Members of minority faiths do not feel demeaned because larger religions consider minority beliefs to be erroneous and will exclude adherents of such beliefs from membership in the majority’s church. The analysis changes once the state becomes involved, however. If the state adopts the tenets of larger faiths, proclaims the beliefs of minority faiths to be in error, and denies members of minority religions access to the privileges of citizenship available to the majority, the government’s actions will be understood very differently. When it is the state that denies the validity of the minority’s beliefs and it is public opportunities that are being denied to the minority’s members, the government’s actions can be accurately described for constitutional purposes as demeaning and stigmatizing.

In brief, I consider Justice Kennedy’s opinion in Obergefell to be a limited decision vindicating the right of same-sex couples to marry. There is nothing about its tone or substance that suggests that it should serve as a clarion call to ignore and trample over the interests of religious individuals and institutions who oppose same-sex marriage. There is some troubling language near the end of the opinion, language that seems to imply as a constitutional matter that there is nothing special about religious exercise that justifies special accommodations for religious persons or institutions. 15 This brief passage hardly suggests that discretionary accommodations are unwise or unnecessary or that they will be rejected by the political branches of government.

However, even if Obergefell is read as a limited decision, religious liberty conflicts relating to same-sex marriage are certainly going to arise. It is important to reiterate, however, that most of these conflicts depend on the adoption of statutes and regulations prohibiting discrimination against gays and lesbians or same-sex couples in the workplace or places of public accommodation. No federal statute provides such protection today. Twenty-eight states provide no civil rights protection for gays and lesbians either. Obergefell does not alter this civil rights landscape. Nor do I see any indication of political will to tamper with the tax exemptions of religious institutions in the foreseeable future. The Bob Jones case, which upheld the denial of a federal tax exemption to a religious university, involved racial discrimination, not the abridgment of a liberty right. For the foreseeable future, the gap between Obergefell and Bob Jones is far too wide to be the basis of serious worry.

Indeed, readers concerned about Obergefell’s consequences might examine Justice Kennedy’s opinion to see if its analysis and language can be used to support the protection of religious liberty affirmatively. Justice Kennedy writes with some eloquence about the nature of marriage, personal autonomy, and human dignity. He notes the nobility and dignity of marriage.16 He describes how the bond of marriage enables “expression, intimacy, and spirituality.”17 Kennedy argues that the liberty the Constitution protects includes “personal choices central to individual dignity and autonomy . . . that define personal identity and beliefs.”18 And he movingly acknowledges “the universal fear that a lonely person might call out only to find no one there.” 19

For the most part, the dissenting justices disparage and ridicule these sentiments about human dignity, nobility, and autonomy. Their error in doing so is palpable. Defenders of religious liberty should embrace these core principles and insist that they apply as meaningfully and forcefully to individuals seeking to adhere to their religious beliefs, identity, and community as they do to individuals joining together in marriage. An individual’s decision to accept the duties that arise out his or her relationship to God is central to human dignity and defines that person’s identity. Membership in a religious community enables “expression, intimacy, and spirituality” in ways that may transcend what an individual can do alone. Faith and religion respond to the “the universal fear” that we may call out in need and receive no response.

Obergefell confirms that same-sex marriages are lawful throughout the United States. That reality is not going to change. Religious individuals and communities should consider the possibility that the best way to defend religious liberty when it conflicts with laws protecting same-sex couples from discrimination may be to argue that the principles and values supporting state recognition of same-sex marriage apply with equal force to the accommodation of religious liberty.

1 Obergefell v. Hodges , slip opinion, June 26, 2015.

2 Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

3 It is worth noting that conflicts between religious believers and anti- discrimination laws protecting same-sex couples may occur even in states that do not recognize same-sex marriages. In Elane Photography, LLC v. Willock, 309 P. 3d 53 (New Mexico, 2013) , a wedding photographer was found to have violated New Mexico’s civil rights law prohibiting discrimination on the basis of sexual orientation in places of public accommodation because she refused to provide her professional services at a lesbian couple’s commitment ceremony. New Mexico did not recognize same-sex marriages when this suit was adjudicated.

4 461 U.S. 574 (1983).

5 133 S. Ct. 2676 (2013).

6 Ibid., p. 2693.

7 Obergefell , p. 4.

8 388 U.S. 1 (1967).

9 Ibid., p. 11.

10 Ibid., p. 7.

11 Ibid., p. 11.

12 Obergefell , p. 19.

13 See, e.g. (Roberts, C.J., dissenting).

14 Obergefell, p. 19.

15 Ibid., p. 27.

16 Ibid., p. 3.

17 Ibid., p. 13.

18 Ibid., p. 12.

19 Ibid., p. 14.

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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