{"id":6328,"date":"2015-12-01T00:00:00","date_gmt":"2015-12-01T00:00:00","guid":{"rendered":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2015\/12\/01\/perception-and-reality\/"},"modified":"2015-12-01T00:00:00","modified_gmt":"2015-12-01T00:00:00","slug":"perception-and-reality","status":"publish","type":"post","link":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2015\/12\/01\/perception-and-reality\/","title":{"rendered":"Perception and Reality"},"content":{"rendered":"

The Supreme Court\u2019s 5-4 ruling last month in Obergefell v. Hodges<\/em>,1<\/sup> holding that state bans on same-sex marriages violated the Fourteenth
\nAmendment, was undoubtedly an important constitutional decision. It meant different things for different parties. Three of the dissenting justices,\t2<\/sup> along with many commentators, noted their grave concerns that Justice Anthony Kennedy\u2019s majority opinion will lead to serious government
\n\tinterference with the religious liberty of Americans who believe as a matter of religious conviction that same-sex marriages violate God\u2019s law. Of course,
\n\tamong those who worked to promote marriage equality and the rights of the LGBT community, Obergefell<\/em> was reason to celebrate.<\/p>\n

\n\tIt\u2019s not that easy to isolate and evaluate the effect this decision will have on religious liberty. Concerns about conflicts between religious freedom and
\n\tlaws protecting same-sex couples against discrimination are nothing new. They predate Obergefell<\/em> by a decade. Over that time period, there has been
\n\ta dramatic cultural and political shift in attitudes in favor of same-sex marriage. Demographics strongly suggest that support for same-sex marriage will
\n\tcontinue to increase. To be sure, Obergefell<\/em> may accelerate cultural and political support for same-sex marriage, but its holding is hardly
\n\tresponsible for this dramatic change in perspective.\n\t<\/p>\n

\n\tIt is true, of course, that the decision requires the governments of all states to recognize same-sex marriages now. Thus, today there are more
\n\tjurisdictions in which religious opposition to same-sex marriages may generate legal conflicts.3<\/sup> This change in constitutional law, standing
\n\talone, may burden some religious individuals. State employees—such as county clerks, for example—may be required to issue marriage licenses to same-sex
\n\tcouples notwithstanding their religious objections to doing so.\n\t<\/p>\n

\n\tMuch of the disquietude expressed about Obergefell\u2019s<\/em> impact on religious liberty, however, does not focus on government employees. Most of the
\n\tpotential burdens on religious liberty identified by courts and commentators involve the adoption of statutes and regulations that prohibit discrimination
\n\tagainst same-sex couples by private sector professionals, proprietors, employers, businesses, and religious institutions. The enactment of such laws—and
\n\tthe refusal to grant religious exemptions from them—is a matter of political will, not constitutional law. The real concern of Obergefell\u2019s<\/em> critics
\n\tis that the Court\u2019s opinion itself may encourage society to be less tolerant of religious opposition to same-sex marriages. If the Court\u2019s decision
\n\tpersuades more Americans to believe that same-sex marriages are both morally acceptable and deserving of legal respect, arguably there will be less
\n\tsympathy for granting exemptions to religious individuals or organizations holding contrary beliefs.\n\t<\/p>\n

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

\n\tIn fact, however, the majority opinion in Obergefell<\/em> does not say that discrimination against gays and lesbians violates the Fourteenth Amendment.
\n\tIndeed, 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
\n\tclassifications based on sexual orientation should be as rigorously reviewed as racial or gender classifications. Unlike many lower federal court decisions
\n\tthat struck down same-sex marriage bans, the Obergefell<\/em> opinion does not discuss conventional equal-protection doctrine at all.\n\t<\/p>\n

\n\tInstead, Obergefell<\/em> holds that bans on same-sex marriage violate the \u201csubstantive due process\u201d right to marry. The focus is on personal liberty, not
\n\tgroup equality. Same-sex marriage bans are unconstitutional because they abridge the fundamental right of privacy and personal autonomy that encompasses
\n\tthe right to marry. Much of Justice Kennedy\u2019s opinion expresses a powerful vision (often in lofty and eloquent language) of the meaning and value of
\n\tmarriage, and it describes the unavoidable material and dignitary harm couples will experience who are denied that status. There is only the most cursory
\n\tdescription of the history and scope of discrimination directed at gays and lesbians throughout American history.\n\t<\/p>\n

\n\tTo the extent that Justice Kennedy talks about equality at all, he discusses equal treatment with regard to the exercise of a fundamental right. Whereas
\n\tcore 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
\n\tanalysis applies only to the right a person exercises.\n\t<\/p>\n

\n\tWhat does this distinction between liberty and equality rights have to do with the likely impact of Obergefell<\/em> on religious liberty? To begin with,
\n\tit 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
\n\tindividuals or institutions to alter their conduct toward gays and lesbians or same-sex couples in any other context. Moreover, the role of government with
\n\tregard to liberty rights has historically been different than its role when equality rights are at issue. Generally speaking, the government mandate with
\n\tregard to liberty rights is one of noninterference. Government should keep its hands to itself and leave the exercise of fundamental rights to private
\n\tdecision-making and ordering. Equality rights are different. Here, government is already involved in regulating or providing benefits to private activities
\n\tand must restructure what it is doing to achieve constitutionally required equality. Put simply, the government is more likely to interfere in private
\naffairs when it attempts to further equality principles. It is no accident that the case that fuels the most fear about intrusions into religious liberty,\tBob Jones University v. United States<\/em>,4<\/sup> involves a compelling state interest grounded in racial equality, not in the promotion of some
\n\tpersonal liberty interest.\n\t<\/p>\n

\n\tAlso, 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
\n\tthe 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
\n\ttheir interests ignored if bans on same-sex marriage are understood to be manifestations of invidious discrimination that violate equal-protection
\n\tguarantees rather than abridgments of personal liberty violating substantive due process. If the danger to religious liberty from Obergefell <\/em>arises
\n\tfrom the message it communicates about opponents of same-sex marriage, that danger is reduced considerably by the majority\u2019s decision to base their
\n\tanalysis on a substantive due-process foundation.\n\t<\/p>\n

\n\tThis distinction is apparent if we compare Justice Kennedy\u2019s opinion in Obergefell<\/em> with his opinion in United States v. Windsor<\/em> 5 <\/sup>
\n\t(the case that struck down DOMA, the Defense of Marriage Act) two years ago. Windsor <\/em>was more of an equal-protection case. A core component of its
\n\tanalysis was the Court\u2019s determination that the supporters of DOMA were \u201cmotivated by an improper animus or purpose.\u201d6<\/sup> The mean-spirited intent
\n\tof the statute—to demean and disparage same-sex couples—was constitutionally impermissible and required its invalidation. Kennedy\u2019s language is starkly
\n\tdifferent in Obergefell<\/em>. Here, Kennedy writes that the belief underlying opposition to same-sex marriage \u201chas been held—and continues to be held—in
\n\tgood faith by reasonable and sincere people here and throughout the world.\u201d7<\/sup>\n\t<\/p>\n

\n\t It is also useful to read Obergefell <\/em>together with Loving v. Virginia<\/em>,8<\/sup> the 1967 case striking down bans on interracial
\n\tmarriages. Loving<\/em> is primarily a conventional equal-protection, race-discrimination case. The Court describes Virginia\u2019s anti-miscegenation law as a
\n\tracial classification, \u201codious to a free people.\u201d9<\/sup> The reasons for adopting the law were \u201cobviously an endorsement of the doctrine of White
\n\tSupremacy.\u201d10<\/sup> The law had no purpose other than \u201cinvidious racial discrimination.\u201d11<\/sup> In Obergefell<\/em>, by comparison, Kennedy
\n\twrites that \u201cmany who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and
\n\tneither they nor their beliefs are disparaged here.\u201d12<\/sup> It is inconceivable that anyone on the Court would use such language to describe the
\n\tracist beliefs condemned in Loving<\/em>.\n\t<\/p>\n

\n\tSurprisingly, the dissenting justices in Obergefell<\/em> reject the hand of mutual respect that Kennedy extends to opponents of same-sex marriage. They
\n\tinsist 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
\n\tan accommodation of their religious beliefs. Justice Kennedy\u2019s respectful language is allegedly nullified13<\/sup> by his statement that when sincere
\n\tpersonal opposition to same-sex marriage is enacted into law, it places the imprimatur of the state on an exclusionary policy that necessarily \u201cdemeans or
\n\tstigmatizes those whose . . . liberty is denied.\u201d
\n\t
\n\t\t14<\/p>\n

<\/sup><\/p>\n

Recognizing that the effect <\/em>of a law may be stigmatizing or demeaning, however, does not mean that the law was intended<\/em> to have that effect.
\n\tThis idea is subtle, but it is important. Sometimes proponents of a law focus so much on the law\u2019s benefits that they fail to accurately appreciate its
\n\tharm 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
\n\tto sacred and traditional understandings of a social institution may reflect primarily reverence for the role that understanding plays in a complex
\n\ttheology or worldview. It is possible to respect adherents of that understanding while acknowledging the problematic consequences that result from enacting
\n\tit into law.<\/p>\n

\n\tJustice Kennedy\u2019s analysis here focuses on the difference between private belief and state action. Beliefs may be benign when they are accepted by, and
\n\tlimited to, individuals and private communal institutions, but have very different meaning and consequences when they are codified into law. A religious
\n\tcommunity 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
\n\tmarriage anywhere.\n\t<\/p>\n

\n\tIndeed, this distinction is intrinsic to religious pluralism in the United States. Most religions are exclusionary to some extent. That is accepted as a
\n\tmatter of private belief. Members of minority faiths do not feel demeaned because larger religions consider minority beliefs to be erroneous and will
\n\texclude adherents of such beliefs from membership in the majority\u2019s church. The analysis changes once the state becomes involved, however. If the state
\n\tadopts the tenets of larger faiths, proclaims the beliefs of minority faiths to be in error, and denies members of minority religions access to the
\n\tprivileges of citizenship available to the majority, the government\u2019s actions will be understood very differently. When it is the state that denies the
\n\tvalidity of the minority\u2019s beliefs and it is public opportunities that are being denied to the minority\u2019s members, the government\u2019s actions can be
\n\taccurately described for constitutional purposes as demeaning and stigmatizing.\n\t<\/p>\n

\n\tIn brief, I consider Justice Kennedy\u2019s opinion in Obergefell<\/em> to be a limited decision vindicating the right of same-sex couples to marry. There is
\n\tnothing 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
\n\tand institutions who oppose same-sex marriage. There is some troubling language near the end of the opinion, language that seems to imply as a
\nconstitutional matter that there is nothing special about religious exercise that justifies special accommodations for religious persons or institutions.\t15 <\/sup>This brief passage hardly suggests that discretionary accommodations are unwise or unnecessary or that they will be rejected by the political
\n\tbranches of government.\n\t<\/p>\n

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

\n\tIndeed, readers concerned about Obergefell\u2019s<\/em> consequences might examine Justice Kennedy\u2019s opinion to see if its analysis and language can be used to
\n\tsupport the protection of religious liberty affirmatively. Justice Kennedy writes with some eloquence about the nature of marriage, personal autonomy, and
\n\thuman dignity. He notes the nobility and dignity of marriage.16<\/sup> He describes how the bond of marriage enables \u201cexpression, intimacy, and
\n\tspirituality.\u201d17<\/sup> Kennedy argues that the liberty the Constitution protects includes \u201cpersonal choices central to individual dignity and autonomy
\n\t. . . that define personal identity and beliefs.\u201d18<\/sup> And he movingly acknowledges \u201cthe universal fear that a lonely person might call out only to
\n\tfind no one there.\u201d
\n\t
\n\t\t19<\/p>\n

<\/sup><\/p>\n

For the most part, the dissenting justices disparage and ridicule these sentiments about human dignity, nobility, and autonomy. Their error in doing so is
\n\tpalpable. Defenders of religious liberty should embrace these core principles and insist that they apply as meaningfully and forcefully to individuals
\n\tseeking to adhere to their religious beliefs, identity, and community as they do to individuals joining together in marriage. An individual\u2019s decision to
\n\taccept the duties that arise out his or her relationship to God is central to human dignity and defines that person\u2019s identity. Membership in a religious
\n\tcommunity enables \u201cexpression, intimacy, and spirituality\u201d in ways that may transcend what an individual can do alone. Faith and religion respond to the
\n\t\u201cthe universal fear\u201d that we may call out in need and receive no response.<\/p>\n

\n\tObergefell<\/em>
\n\tconfirms that same-sex marriages are lawful throughout the United States. That reality is not going to change. Religious individuals and communities should
\n\tconsider the possibility that the best way to defend religious liberty when it conflicts with laws protecting same-sex couples from discrimination may be
\n\tto argue that the principles and values supporting state recognition of same-sex marriage apply with equal force to the accommodation of religious liberty.\n\t<\/p>\n","protected":false},"excerpt":{"rendered":"

The Supreme Court\u2019s 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\u2019s majority opinion<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[309],"tags":[141],"class_list":["post-6328","post","type-post","status-publish","format-standard","hentry","category-november-december-2015","tag-november-december-2015"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6328","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6328"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6328\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6328"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6328"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6328"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}