I have previously suggested in these pages that the Supreme Court’s recent decision in Obergefell v. Hodges—the five-to-four decision which declared that two Americans of the same sex have a constitutionally guaranteed right to marry each other—may be the worst in the history of the Court. First, there was no adequate legal or constitutional basis to make such a decision, given that the Constitution reserves the responsibility for determining marriage law to the states, not the federal courts. Second, the Court decided not on the law, but on a particular political or cultural view that marriage is a matter of individual choice, that it is about self-actualization, and not about maintaining tradition, preserving the stability of the society, promoting procreation, ensuring the rearing of children by two biological parents, or behaving pursuant to a particular moral code.
Suppose you believe (as did the four dissenters, Justices Scalia, Thomas, Alito, and Roberts) that the Supreme Court’s majority got it wrong. Are you compelled to accept the majority’s implicit suggestion that their view is the only correct one? If, for example, you have sincerely held religious convictions that marriage should be limited to one man and one woman, may you still act on such convictions? If you are a baker, may you refuse to bake a wedding cake for a gay couple? If you are a clergyman, and are asked to perform a same-sex marriage ceremony, may you say no? If you are a county clerk, may you deny a gay couple a marriage license? The first and third of these questions have been the subject of litigation, with bakers compelled to bake the cake, and some local officials—Rowan County, Kentucky, clerk Kim Davis, most famously—ordered to grant licenses. As a state function, mandating the granting of marriage licenses falls squarely within the Court’s actual holding that no state can deny marriage to a same-sex couple. But what of the bakers? What of the clergyman?
There is a powerful argument that, since the 14th Amendment is written in terms that prohibit state action, individuals should be free to discriminate even if states are not. Those who believe strongly in what is sometimes referred to as “freedom of association” have read into this argument an affirmation of the right of Americans to choose with whom they want social contact or even business relationships. That view was probably ascendant well into the 20th century. Now, however, in federal, state, and local laws and ordinances, there are many prohibitions on discrimination in the conduct of business, and, at least with regard to matters of race and sex, it is clear that one cannot refuse to conduct commercial relationships without the risk of legal penalties or a ruinous lawsuit. There are some states that have on the books legislation that offers the same protection to those who might be subject to discrimination because of their sexual orientation, and at least one of the cases involving bakers seems to have turned on that, rather than on federal constitutional rights.
Thus, in Craig v. Masterpiece Cakeshop, Inc., which was decided less than two months after Obergefell came down, the Colorado Court of Appeals ruled that Colorado’s public accommodations law, which forbids discrimination on the basis of sexual orientation, meant that Colorado’s policy of nondiscrimination trumped the rights of Jack C. Phillips, the owner of Masterpiece Cakeshop. He was ordered to stop refusing to bake cakes for same-sex weddings.
Mr. Phillips had argued that his free-speech rights were violated because the state sought to compel him to adopt a public stance in favor of same-sex marriage, and that his religious rights were violated because, as evidence in the case established, he had been a Christian for approximately 35 years and “believes in Jesus Christ as his lord and savior.” Further, as noted in the Colorado court’s opinion, “Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriage.”
The Colorado Court of Appeals was unimpressed. Phillips had argued that he was not discriminating against gays, and sought only not to participate in same-sex weddings, but the court decided that, since only gays have same-sex weddings, any opposition to same-sex weddings was unlawful discrimination against gay people, citing in support of this point Obergefell. Now, there indeed is legal authority which says that, because of the First Amendment’s guarantee of freedom of speech, the government may not compel speech with which the speaker disagrees. With regard to Phillips’s free speech claim, the court suggested that baking a cake was not necessarily expressive conduct. Moreover, they added, if Phillips wished to make clear that he opposed same-sex marriage, and if he wished to make clear that his cake baking should not be construed as acquiescence in the practice, all he had to do was say so. No reasonable person, the court confidently claimed, could read Phillips’s compliance with Colorado’s antidiscrimination law as an endorsement of same-sex marriage.
The court was similarly dismissive of Phillips’s First Amendment claim of free exercise of religion. Colorado’s antidiscrimination law, according to the opinion,
does not compel [Phillips] to support or endorse any particular religious views. The law merely prohibits [the bakery] from discriminating against potential customers on account of their sexual orientation.
Phillips, the court noted, remained free to “continue espousing [his] religious beliefs, including [his] opposition to same sex marriage,” but if he wished to operate a bakery that dealt with the public, he was prohibited “from picking and choosing customers based on their sexual orientation.” Phillips had explained to the gay couple who sought the cake from him that he would be happy to sell them any other baked goods, just not a wedding cake. We can expect similar decisions in any state with such an antidiscrimination law, and there is already one other decision, from New Mexico, which held, on similar grounds, that a photographer could not refuse those who sought to hire her for same-sex weddings.
There is some precedent from the U.S. Supreme Court that would suggest religious convictions might actually allow one to avoid distasteful commercial dealings. This was the reasoning in the controversial Hobby Lobby case, in which the Court declared that the owners of a corporation who had religious scruples against abortion could be excused from a legal mandate in the Patient Protection and Affordable Care Act that would have required them to supply their employees with the morning-after pill. The Supreme Court reached this decision following the federal Religious Freedom Restoration Act (RFRA), which required the federal government, at least in certain circumstances, to defer to religious scruples.
There was some language in Justice Kennedy’s majority opinion in Obergefell that acknowledged the Constitution’s protection of religious freedom, and remarkably, in the early pages of his opinion, he did acknowledge that “Marriage,” in the view of the states that wished to limit it to unions between a man and a woman, “is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” But for Kennedy and the four reliably liberal justices on the Court—Ginsburg, Breyer, Kagan, and Sotomayor—this view might be held in good faith by “reasonable and sincere people,” but for a state to hold such a view would be unconstitutional.
“The limitation of marriage to opposite-sex couples may long have seemed natural and just,” Kennedy wrote for the majority in Obergefell, “but its inconsistency with the central meaning of the fundamental right to marry is now manifest.” Manifest, that is, to certain enlightened intellectuals in America, including an erstwhile five-person majority on the Supreme Court. But what of other Americans? “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises,” Kennedy admitted, adding, apparently without irony, “neither they nor their beliefs are disparaged here.” Toward the end of his opinion, Kennedy sought to assure religious opponents of same-sex unions that they are still protected under the Constitution:
[R]eligions, 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.
Moreover, Kennedy declared,
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.
Apparently, then, Americans who believe that marriage ought to be limited to one man and one woman have a right to debate, and to confirm their views in faith-based institutions, such as their churches or synagogues. But how much real protection is afforded to such persons if, like bakers or wedding photographers, they cannot pursue their professional careers according to their religious beliefs? For the time being, it does seem safe to predict that no clergyman can be forced to perform a religious wedding for a gay couple, but that is as much as we can confidently say regarding the degree to which religious rights are still protected.
Worse, perhaps, than what might happen to bakers, photographers, and county clerks is what has happened to the American people and to constitutional government in this country, as the four dissenters in the case observed. In Obergefell a bare Court majority took it upon themselves to declare that the times had changed, understanding had become more enlightened, public policy now needed to evolve, and the American people could not be trusted to make this happen quickly, effectively, and fairly. Whatever one thinks of gay marriage, Obergefell represents a woeful loss of fundamental liberty and self-government.
Perhaps this is nothing new. In a pungent piece soon to appear in the Supreme Court Review, an elite journal of academic opinion, one of the most astute and provocative constitutional-law scholars, Georgetown’s Michael Seidman, declares that
The [same-sex marriage] decision is no more audacious than Marbury v. Madison, no more inconsistent with original understanding than Brown v. Board of Education, no more contrary to tradition than Roe v. Wade, no more antimajoritarian than Miranda v. Arizona.
For three quarters of a century or so, many of us put our faith in the nominating process to correct the errors of the Supreme Court. That correction hasn’t happened, and it increasingly looks as if it won’t. Thoughtful and concerned friends of the Constitution may now begin to wonder if the only means of returning self-government to the American people is another constitutional convention.
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