The Supreme Court announced yesterday a 5-4 decision allowing same sex marriages in all 50 States. Writing for the majority, Justice Anthony Kennedy said the decision was about “dignity”. Hmmm.
The Court’s hard core opposition, Allito, Thomas, and Scallia, joined by Chief Justice Roberts tried to hide their religiously grounded views by claiming that no where in the Constitution is their guidance on what constitutes marriage. Alliot wondered whether the Country had now entered a slippery slope where religious views would be exiled to the privacy of ones home. Hmmm (where else should they be?).
To the extent that marriage is never mentioned in the Constitution, the minority is correct that the Federal Government has no Constitutional right to define “marriage”. The Constitution does have a 14th Amendment, however, which provides due process and equal protection under the law to all citizens. Herein lies the clue of why the minority got it wrong.
In the past the Court has heard arguments that marriage between a black and a white were, based upon Biblical interpretations, improper and should be banned “if States so chose”. This supposed religious insight is also not mentioned in the Constitution but is inferred, according to supporters of these views, in the first Amendment’s “freedom of religion” words. These religious crusaders are sure the Constitution supports their scientifically unsupported views. In Loving v Virginia, the Court decided interracial marriage was Constitutional.
Religious groups, particular well organized ones, have traditionally used various techniques to assure followers that “god was on their side”. This reassurance made followers a little more committed (especially in donating money to the cause). And, throughout history, no better technique to bind a group together has been than define an enemy or groups who were “not like them”.
Race is the easiest because you can see it. Other religious groups sometimes are easy too especially if they chose dress that differentiates. But right in there has also be sexual orientation. “Those people are different”.
With the Supreme Court decision a large number of Conservative religious groups are openly worried. These groups have long held that they could deny employment or withhold services from certain groups their religion did not accept. They claimed this was a matter of conscience. Now they fear will be required to treat LGBTs as if they were “regular people”. These groups are speaking out that the 14th Amendment is now trumping the 1st. Hmmm.
Justice Kennedy in his majority opinion honed in on “dignity” as the theme. Dignity stemming from the Constitution’s preamble and flowing though to both partners and any children they might have. In essence, Kennedy’a argument was marriage “was the right thing to do”.
The Court’s decision may also become to be seen as the right balancing of the 1st and 14th amendments.
Secularists read the first Amendment literally. There should be no State religion and all religious traditions should be welcome… providing that none interfere with anyone else’s pursuit of happiness (under the law).
So, if any church wishes to bless the marriage of only heterosexual couples, then that is their right. The church is a private organization and it has the prerogative to establish its own rules… providing these rules do not prevent same sex couples from also getting married (someplace else) and enjoying the same State/Government provided legal benefits.
An Oklahoma religious university has spoken out quite elegantly about its fear of losing tax exemption because of its long standing policy of not employing gays. In a radio interview, the University President said they had nothing against gays but their policies had long denied employment. Now the University was worried it would be forced to close because it would not change.
This quandary raises further legal questions. Should this tax exempt University be required to admit and treat as equal members of the LGBT community despite past practices? Should this University be prevented from firing an employee if that employee chooses to take on a same sex partner?
Both of these questions would be easy to decide if the only issue was “dignity”. But they seem to fall in that gray area of religious expression that does not create great harm for those denied admission or employment. On the other hand, tell me again why they should receive an tax advantages?
The Supreme Court’s dignity argument is certain well based. Church-State matters will eventually lead Americans to realize that due process is not opposed to the first Amendment, rather it helps define the limits of irrational beliefs. Religious groups can certainly continue to believe what they want about LBGT members, and as private organizations can serve whomever they please. In the greater secular United States, however, the negative reach of certain religions and religious beliefs has limits.
It is a shame that Anthony Kennedy did not have this revelation during the Hobby Lobby deliberations.