In the aftermath of Friday’s Supreme Court decision, attention is turning toward the future of religious liberty. And if you read Justice Kennedy’s opinion on the ruling, you’ll quickly learn that if there’s to be any semblance of our historic understanding of religious liberty, there will be so in spite of his written remarks.
Kennedy’s comments come in two main places:
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. (19)
Kennedy remarks that objections to same-sex marriage are made on “decent and honorable religious or philosophical premises.” Oh, and they shouldn’t be “disparaged.” He’s channeling the idea that Barack Obama has himself noted, namely, that there are people of good will on both sides of the debate.
Great. Wonderful. The future is looking bright.
But, and this is where it begins to get interesting: When those “decent honorable religious or philosophical premises” are acted upon—or are lived out in public life through either businesses or institutions—there’s a reason to reign those “decent honorable religious or philosophical premises” in. Kennedy denies that these religious principles have any basis for codification in law. Why? Because his own arbitrary imposition of liberty and autonomy sets the criteria.
Then Kennedy goes down a well-worn path that we’ve seen President Obama’s administration go down. He seems to adopt the foreign, historically ignorant “freedom to worship” concept of religious liberty.
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. (27)
Notice what Kennedy says and does not say. He says the First Amendment is an excellent predicate for allowing one’s beliefs to continue to be taught. Okay. But he gives no deference to that inconvenient clause of the First Amendment that insists upon the free exercise of religion, which signifies a lot more than simply the right to “teach” one’s views in the abstract. Religious teaching, contra Kennedy, is doctrinal, of course. But if doctrine is worth anything, it’s worth something because Christianity, along with all religions, believes its orthodoxy is personally and socially transformative.
The mere mention of religious liberty amidst the soaring language of Kennedy’s pen may appear comforting, but Chief Justice Roberts—indeed, all dissenting opinions brilliantly do—cries foul.
In Chief Justice Roberts’s words,
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. (28)
The Chief Justice’s words are exactly right. He calls the bluff of the majority decision’s empty statements. The majority’s care for protecting religious liberty is meaningless, the Chief alleges, because how can we meaningfully protect religious liberty if religious values are the source of the gay community’s alleged indignity and defamation? There is no answer and the majority’s opinion is hypocritical and unfulfilling if it believes that its approach will allow for a robust conception of religious liberty to persist.
As the Chief Justice very rightly notes, “people of faith can take no comfort in the treatment they receive from the majority today.”
Lastly, Alito offers these foreboding words:
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. (6)
The likes of Roberts and Alito offer a more telling portrayal of where we’re headed. There will be no dissent. The state will act to punish institutions that fail to comply. But remember, dear sheep, what the Beautiful People all told us: #LoveWins. And if you don't think it does, you're a bigot.
Of course, the Christian narrative is one where love does indeed win. But whether stealing Christian imagery such as rainbows, or vivifying that which the Scriptures say to mortify—Pride—it isn't beyond the LGBT community to disorder the word “love,” either.
Andrew Walker is Director of Policy Studies at The Ethics and Religious Liberty Commission and a PhD student in Christian Ethics at The Southern Baptist Theological Seminary.