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Dissenting Obergefell Justices Sound Alarm On Religious Freedom


Within moments of the Supreme Court handing down its Obergefell decision, the media and other progressives celebrated the news that Anthony Kennedy had redefined marriage to include same-sex couples. He and four other justices on the Supreme Court discovered — Kennedy struggled mightily to explain where or how, precisely — a new fundamental right to same-sex marriage. That meant, as Justice Antonin Scalia put it, that “every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.”

Lost in the celebration was even a slight journalistic comprehension of what the Court had done, much less a critical analysis of same. There is much to be written about the effect of this Roe V. Wade-style decision that bans any further discussion of changing marriage law voluntarily. I imagine there will be much focus on the alarms sounded by the four dissenting justices about the grave threat to self-government, rule of law and the unintended consequences of redefining the pre-governmental institution that forms the basis of society. For now, let’s look at what the justices had to say about the clash between sexual liberty and religious freedom.

Let’s remind ourselves that for years, now, the media have acted as cheerleaders for same-sex marriage. At best, they’ve ignored concerns from much of the country that redefining marriage to include same-sex couples could lead to grave threats to religious freedom. At worst, they’ve disparaged critics and skeptics of marriage redefinition as the worst kind of bigots. Many journalists, including some at the Washington Post, New York Times, NPR and other major outlets, put word out that they did not believe opponents of marriage redefinition needed to be covered fairly, shunning them as beneath contempt. In recent months, the media engaged in anti-religious liberty campaigns, hunting for heretics in state-based battles of sexual liberty vs. religious freedom.

With that brief reminder, let’s look at what each justice had to say about the clash.

Kennedy: We’ll let you talk about your wrong religious views. Nothing more.

First up is Anthony Kennedy’s opinion, boldface mine. It’s remarkably brief, particularly considering the lengthy and flowery prose dedicated to other parts of his emotive opinion:

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.

“Today’s decision, for example, creates serious questions about religious liberty.”

And that’s … it. That’s the entirety of Kennedy’s comment on the matter. You know how sometimes you hear something or see something and it sounds nice and then when you think about it, you start to realize that it was carefully worded to make it seem nicer than it is? Well, this doesn’t even require a re-read for your antenna to go up. I mean, it’s true that the First Amendment recognizes the right of the religious to teach. But it does ohhhhhh so much more than that! It actually guarantees freedom of religious expression, of which teaching the faith is but one small part. Or as the First Amendment puts it, Congress shall make no law prohibiting the free exercise of religion. To pat the religious on the head and say, “you can kind of still teach, for now” while discovering a new constitutional right in deep conflict with those teachings is disconcerting, to put it mildly.

Roberts: This decision does not protect the religious.

The dissenters picked up on it. Let’s see what they have to say about this not-even-remotely-generous allowance King Kennedy doles out to those loser American subjects who insist on retaining their faith. First up is the author of the main dissent, John Roberts. He goes to town on the topic:

“The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. 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. Amdt. 1.

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 samesex 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. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

“Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

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. See Tr. of Oral Arg. on Question 1, at 36–38. 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 samesex marriage. Ante, at 19. 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 “demea[n] or stigmatiz[e]” same-sex couples. Ante, at 19. 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 “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). 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. Ante, at 19.

Scalia: Rule of law and self-government have been gravely wounded. Also, Kennedy is an idiot.

Scalia didn’t write specifically about religion, but he did say this decision robbed Americans of their right to self-government and that the court beclowned itself and damaged American democracy.

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. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Later he writes:

“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman. This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Thomas: CODE RED. I repeat, we have a religious liberty CODE RED.

In most Supreme Court cases where Scalia is writing a dissent, his dissent is the most fun to read. This case is no exception, particularly if you enjoy watching Kennedy’s argument ripped to shreds. But the other dissents expressed exactly as much alarm as Scalia, which makes them far more frightening to read. Here’s what Clarence Thomas had to say:

“The majority’s decision threatens the religious liberty our Nation has long sought to protect.”

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…

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

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.

Smooth move, Kennedy! What are you going to do for an encore? Wait, don’t answer that!

Alito: With this lawless decision, government will stamp out dissent

Alito also sounded the alarm, pointedly and with economy:

“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes.”

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. E.g., ante, at 11–13. 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. Ante, at 26–27. 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 turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds. Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

Kennedy’s muddled opinion included a total of one paragraph on the most contentious religious freedom issue of our time. Even that paragraph showed, as Thomas put it, a mistaken understanding of the First Amendment. Perhaps when the media complete their marches in pride parades and finish their breathless coverage of a rainbow-spackled White House and are done changing their logos to rainbow flags, they can take a few minutes to glance at these dissents, each of which express grave concerns about religious freedom and the rule of law.

And time’s a-wastin’.

In the few hours since Obergefell was passed, media outlets have published op-eds in support of polygamy, against religious freedom laws, and against tax exemptions for churches.

Who could have anticipated that?