Article  Religious Liberty

The Supreme Court and religious liberty: Reason for concern

religious liberty

In the aftermath of today’s Supreme Court ruling, attention is turning to how the Court’s ruling will affect the religious liberty of those who disagree with the Supreme Court’s redefinition of marriage.

Consider: Now that the United States government recognizes same-sex marriage as a fundamental right, how will those rights conflict with the large percentage of Americans who disagree with same-sex marriage and view it immoral or even harmful? How will institutions committed to upholding a biblical or philosophical truth concerning marriage and sexuality be treated when these institutions oppose official government position?

As when oral arguments occurred and the government’s Solicitor General admitted that same-sex marriage would pose enormous consequence for religious institutions, the fruits of today’s decision offers legitimate reason to be concerned, even if elements of the decision seem reasonable and respectful of religious opinion.

In the majority opinion, Justice Kennedy, who authored the majority opinion, appears to extend a measure of respect to those whose consciences or religious values conflict with same-sex marriage. According to Kennedy,

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. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.

In Kennedy’s view, the right to hold one’s beliefs about marriage remain intact. The conflict arises, however, when individuals work through democratic channels to deny what the majority opinion considers a fundamental liberty. This notion tragically, and as Justice Scalia notes—mistakenly—adopts the idea that religious practice is something merely personal or idiosyncratic, rather than seen as something fundamental to a person’s worldview. It divorces one’s faith from taking action.

Kennedy continues,

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

According to Kennedy, even in a regime of same-sex marriage, the First Amendment should be firmly upheld and the rights of those who disagree, protected. Debate should continue. This sounds encouraging, and the deference that Kennedy makes in upholding the good will of those involved in such disputes seems encouraging.

But that’s not the whole story.

Indeed, compared with the soaring righteousness of Kennedy’s rhetoric, his concerns with protecting religious liberty appear as an afterthought to his larger concern of constructing a concept of liberty premised on a suspect, morally-flawed understanding of personal autonomy.

Kennedy’s nod to religious liberty left those in the minority unhappy and fearful for what a regime based on expressive sexual liberty will do, in the long, to those who object to a worldview of seemingly limitless sexual freedom.

In his dissent, Chief Justice Roberts expressed concern and a measure of indignant rebuke to the Court on this matter. In particular, he takes issue with Kennedy’s construction of religious liberty as something abstract, rather than practiced.

Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same- sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.

Roberts goes on:

There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same- sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demean or stigmatize” same-sex couples. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “dignitary wounds” upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court. Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

According to Roberts, the majority’s support for religious liberty doesn’t square with how they’ve characterized those who disagree with same-sex marriage. In short: How can religious liberty be upheld if it’s the source for hardship that the Supreme Court is seeking to protect? Who will win—hurt feelings or religious liberty?

Justice Alito expressed concern that the ascendency of same-sex marriage will “vilify” those who “dissent” from such a belief. In Alito’s words,

Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn- about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Justice Thomas later argues that the majority opinion’s effect will pose “potentially ruinous consequences for religious liberty.”

More quotes could be pulled from the decision demonstrating just how seriously the minority considers religious liberty under threat. At this point, the concerns raised of religious liberty worsening are based in conjecture. No one can tell the future. At the same time, the justices concerns are not based on unfounded conjecture. Slowly and surely, Americans are now witnessing a slow erosion of religious liberty happening in the public square. From backlash at expressing a belief about marriage that results in dismissal, to the real fear that institutions that desire to maintain accreditation may not be able to do so, the concerns registered in the past are being catapulted into the present.

religious liberty

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