On Friday the U.S. Supreme Court issued one of its worst rulings in the court’s history. The court’s opinion in the case of Obergefell v. Hodges struck state marriage laws and amendments nationwide defining marriage as the union of one man and one woman. In so doing, the court legalized same-sex marriage in all fifty states.
However, that is not all the court did. With this ruling, the court:
- Fundamentally undermined American democracy;
- Asserted itself as a legislative arm of government;
- Took liberties with its interpretations of the U.S. Constitution and its amendments;
- Paved the way for polygamy and further redefinition of marriage in America;
- Recklessly placed religious liberty at risk.
Unfortunately, these are not exaggerations or wild claims. These are the logical outworkings of a very bad ruling–and they are concerns expressed by other members of the court.
What the Ruling Does to Democracy in America
Americans in more than thirty states put the definition of marriage to a popular vote. Tens of millions of Americans voted on whether or not to define marriage as the union of one man and one woman. Today’s ruling casts those millions upon millions of votes aside as irrelevant. It fundamentally undermines democracy in America.
What is particularly troubling is the way the Supreme Court went about justifying its ruling. Same-sex marriage in America is less than thirteen years old; worldwide, no nation on earth recognized same-sex marriage before the year 2000. That means there is virtually no history of same-sex marriage in America or elsewhere on which the court can base its ruling.
In effect, today’s ruling seems to create a right that is not found in the U.S. Constitution or in any past court rulings–and it is created at the expense of millions of votes cast by Americans who simply wanted to exercise their very clear right to govern themselves.
In reading the dissenting opinions from Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito, there is one common thread woven through all of them: All four justices are concerned about how today’s ruling impacts the future of democracy in America.
Chief Justice Roberts writes,
“If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? . . .
“Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making ‘new dimensions of freedom . . . apparent to new generations,’ for providing ‘formal discourse’ on social issues, and for ensuring ‘neutral discussions, without scornful or disparaging commentary.’ . . .
“The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Justice Scalia captures the problem very succinctly in his dissenting opinion. He writes,
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. . . .
“Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. . . . Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.”
The state marriage laws at issue in this case were as purely democratic as possible. In Arkansas and many other places, they were proposed by citizens via a petition process; they were placed on the ballot for a popular vote; and they were enacted by the voters themselves.
Some states voted to recognize same-sex marriage; most states voted not to; but, as the justices note, the debate carried on, and the democratic process continued to work as intended.
Today’s ruling marks a breakdown in that democratic process.
What the Ruling Means for Polygamy and the Future of Marriage in America
Chief Justice John Roberts recognized this in his dissenting opinion, saying,
“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. . . . Although the majority randomly inserts the adjective ‘two’ in various places [in its ruling], it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”
We have said before that recognition of same-sex marriage paves the way for polygamy; ultimately, if marriage is continually redefined, it loses its meaning.
Today’s ruling redefined marriage and set the stage for marriage to be further redefined in the future. Continually redefining marriage strips it of its meaning. Eventually, the question will be, “If marriage doesn’t really mean anything, what’s the point of recognizing it at all?”
What the Ruling Does to Religious Liberty in America
The closest the court came to acknowledging the potential conflict between same-sex marriage and religious liberty came on Page 27 of the opinion, in which Justice Kennedy wrote,
“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 ruling makes it clear the court is fine with people of faith saying marriage is between a man and woman, and it is fine with religious groups teaching marriage is between a man and woman. The court stops there, however.
If you do not believe today’s ruling undermines religious liberty in America, check out this quote from one legal expert:
“[Today’s ruling] 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. . . . 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.”
No, this was not written by an attorney working for a “right-wing group” like the American Family Association. It was written by a respected legal scholar who is a graduate of Yale Law School; in fact two of his colleagues–one of whom graduated from Harvard and the the other a graduate of Yale also–joined him in his analysis of the ruling.
I’m talking about U.S. Supreme Court Associate Justice Samuel Alito and his dissenting opinion in which Justices Thomas and Scalia joined.
In fact, Justice Thomas added in his opinion,
“[This ruling] will likely cause collateral damage to other aspects of our constitutional order that protect liberty. . . .
“Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect. . . .
“Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”
And Chief Justice Roberts notes,
“Today’s decision, for example, creates serious questions about religious liberty. . . . 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. . . . 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.”
In other words, by redefining marriage without addressing the religious liberties of people of faith who disagree with that new definition, the court has set the stage for conflict between the “right” to same-sex marriage and the freedom of religion.
The ruling states that people may believe and teach that same-sex marriage is wrong; it does not recognize that people might actually want to act on those teachings and beliefs. That’s a huge problem.
Here are a few specific ways religious liberty and same-sex marriage might conflict under this new ruling:
- Christians who own florist shops, bakeries, wedding venues, photography studios, and similar businesses may be sued for declining to participate in same-sex weddings.
- Ministers may be sued for declining to perform same-sex marriages.
- A justice of the peace, judge, or similar official may be sued or reprimanded for declining to solemnize a same-sex marriage.
- Churches may be sued for declining to open their property for same-sex weddings and receptions.
- Christian colleges may be sued or lose funding or accreditation for wishing to limit married student housing to married, opposite-sex couples.
- Faith-based adoption services may be penalized for declining to place children with same-sex couples.
- Some faith-based organizations might be at risk of losing their nonprofit status.
Every one of these scenarios is rooted in an incident or lawsuit that has already come up during the ongoing debate over same-sex marriage. In each case–whether it was Gordon College in Massachusetts or justices of the peace along the east coast–people on both sides of the debate generally agreed conflict between religious liberty and same-sex marriage could not be addressed fully without knowing how the U.S. Supreme Court would rule.
Now that this ruling has been handed down–and a right to same-sex marriage has been handed down with it–we can expect religious liberty to come under a renewed assault nationwide.
Friday’s Supreme Court ruling may go down in history as one of the court’s most poorly cobbled-together attempts to legislate from the bench.
The ruling undermines American democracy by treating millions upon millions of voters as completely irrelevant to the marriage debate.
The ruling paves the way for polygamy and further redefinition of marriage in America.
The ruling deliberately omits any reference to the “free exercise of religion,” leaving people of faith, religious organizations, and others who do not embrace the court’s definition of marriage vulnerable.
Rather than let Americans decide for themselves how marriage will be recognized and regulated in each state, the court has forced its definition of marriage onto Americans–a definition with which tens of millions of voters disagree. That does not bring the nation any closer to a consensus on marriage. If anything, it further divides us.
Here is what we plan to do:
- In the short run, we plan to work to make sure the freedom of speech and the free exercise of religion are not infringed in the wake of this ruling.
- In the long run, we plan to work with others to determine what policies and actions may be utilized to mitigate the negative consequences of this ruling as much as possible.
As we keep saying, one thing is certain: This situation is far from over.