Obergefell and the End of Religious Reasons for Lawmaking

By Micah Schwartzman, Richard Schragger and Nelson Tebbe | June 29, 2015

(Getty/Alex Wong)

(Getty/Alex Wong)

In Obergefell v. Hodges, marriage equality for same-sex couples became the law of the land. In the wake of the decision on Friday, focus has intensified on religious freedom for traditionalists. Few of the questions about religious accommodation are novel—they had been playing out in the states for some time. Yet the decision did have important ramifications for the relationship between religion and government in the United States, and it does mark the formal beginning of a new phase in the so-called culture wars.

The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. From the beginning, the only real basis for excluding same-sex couples from civil marriage was religious. At the oral argument in the Supreme Court, as in lower courts, the states struggled to justify marriage exclusion in terms that all citizens could understand. Their theory that expanding civil marriage would weaken a conception of marriage linked to procreation, and thereby lead opposite-sex couples to remain unmarried, was nonsensical. In the Obergefell opinion, the Court called it “counterintuitive.”

So when the Court struck down exclusions of same-sex couples from civil marriage, it implicitly—but clearly—rejected the idea that such a law could be based on religious reasons alone, without understandable secular aims. Those justifications could not suffice to justify discrimination with respect to a basic freedom like the ability to marry.

To be sure, in Obergefell, the Court did not equate religious convictions with animus, hatred, or bigotry. Writing for the majority, Justice Kennedy recognized that “[m]any 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 religious convictions may be decent and honorable without providing sufficient grounds for determining the content and scope of our constitutional liberties.

In this case, Justice Kennedy made exactly this point with respect to prohibitions on same-sex marriage, stating that when “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 who liberty is then denied.” Religious traditionalists may hold their views in good faith, and still the imposition of their beliefs through law cannot be justified to those who do not share their religious perspectives. Without some significant and publicly justifiable basis for rejecting same-sex marriage—which was never forthcoming in the public and legal debates leading up to Obergefell—excluding same-sex couples is arbitrary. And a state that violates fundamental rights on arbitrary grounds ultimately disparages and demeans those it governs.

Obergefell should put to rest the idea, which had been persisting, that American law touching on fundamental rights can be based purely in religious reasons. The Court leaves open some important questions, such as whether legislation may be based on nonreligious moral disapproval alone, independent of any concern for whether regulated conduct harms others. But its statement on the impermissibility of religious reasons for restricting basic rights is impossible to miss.

Now, after the decision in Obergefell, attention is shifting more strongly to the question of whether religious traditionalists should receive accommodations from laws guaranteeing equality to LGBT citizens. In some sense, that is a canard. Nothing in Obergefell directly affected the most pressing questions. Because comprehensive civil rights laws protecting LGBT citizens do not exist on the federal level or in the majority of states, marriage equality does not affect the ability of businesses to discriminate against gay people in most jurisdictions. (The ability of public officials to decline to administer same-sex marriages is an exception—it is directly raised by Obergefell).

Yet the Obergefell dissenters gave the impression that the Court’s decision had direct ramifications for religious freedom—an impression that was misleading and should be corrected. Chief Justice Roberts, for instance, said, “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.” He gave as examples a religious college that excludes gay couples from married student housing, and an adoption agency that refuses to place children with same-sex couples. But Obergefell does not create either of these conflicts.

After the decision, religious colleges can continue to exclude same-sex couples from married student housing, unless the state or town happens to have an independent law protecting against discrimination on the basis of sexual orientation or marital status. And adoption agencies may continue to disfavor gay couples in those jurisdictions. Moreover, the withdrawal of tax-exempt status for organizations that oppose same-sex marriage, which Roberts also mentioned, is extremely unlikely. Certainly nothing in Obergefell requires the IRS to take that step. Thus, Chief Justice Roberts was warning about conflicts that are either already underway or unlikely to happen anytime soon.

Justice Thomas was closer to the truth when he said that the Obergefell decision changed the political dynamic in the clash between LGBT rights and religious freedom. Before the decision, religious traditionalists could advocate in democratic politics for the preservation of traditional marriage. “Had the majority allowed the definition of marriage to be left to the political process,” he wrote, “the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process.”

After Obergefell, that political strategy is no longer available. To the extent religious traditionalists continue to oppose same-sex marriage, they cannot demand robust protections in exchange for agreeing to marriage equality, as they did in each of the states that enacted same-sex marriage by statute. Instead, they must oppose civil rights protections for LGBT people. Or they must demand religion accommodations in exchange for civil rights guarantees, as they did in Utah.

The Court’s decision in Employment Division v. Smith, written in 1990 by Justice Scalia and endorsed by the Court’s conservatives, prevents these religion accommodations from being required as a matter of federal constitutional law (and much state constitutional law follows suit). That means advocates for religious accommodations must rely on statutory protections for religion, and they must do so using the methods of ordinary politics. Unless the justices are willing to reconsider Smith, religious traditionalists will continue to pursue accommodations in legislatures, administrative agencies, and through ballot initiatives. They can do that because legislatures can accommodate religion for reasons that are not themselves religious—like solicitude for the burden that some laws may place on citizens’ deeply held convictions. For example, the Court recently accommodated a prisoner who wished to grow a half-inch beard despite prison grooming regulations. That was perfectly appropriate.

What lawmakers can no longer do is burden basic rights for purely religious reasons. Obergefell puts an end to that campaign. Laws supported by religion can continue to be enacted, but only if they can be justified by concern for harm to others or some other public rationale. Chief Justice Roberts understood this implication when he argued against the majority that the Constitution does not enact John Stuart Mill’s On Liberty, which famously defends the view that infringements on personal liberty can only be justified to prevent harm to others. Whether he is right about that or not, the Constitution does not permit the government to pass laws that interfere with individual rights on the basis of religious reasons. That too is now the law of the land.

Micah J. Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Richard C. Schragger is Perre Bowen Professor and Barron F. Black Research Professor of Law at the University of Virginia School of Law.

Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School.

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