How the DOMA Decision Advanced Religious Freedom

Religious freedom is not mentioned in the Supreme Court opinions for either of the two same-sex marriage cases that were decided last Wednesday.  Despite the fact that amicus briefs on both sides of both cases argued that any ruling would have important religious freedom implications, no justice broached the subject.  This silence is unfortunate because the decisions bolster support for religious liberty, as guaranteed in the First Amendment to the U.S. Constitution.

The case of Hollingsworth v. Perry ended a series of appeals seeking to revive the California ballot initiative Prop 8.  That initiative sought to amend the California state constitution to limit the definition of marriage to between one man and one woman.  The U.S. Supreme Court did not reach the merits of the case.  Rather than determine whether enforcement of Prop 8 would violate any federally guaranteed rights, the court held that the refusal of any state official to enforce or defend the initiative means that there was no specific case or controversy at stake.  The fears of same-sex couples that their previously legitimate marriages could be nullified were allayed by the fact that no official would enforce the provision to take their rights away.  The initiative’s public boosters did not have a specific enough stake in the outcome of the litigation to serve as litigants.

Chief Justice Roberts and Justice Scalia stayed more or less consistent on this jurisdictional question when it came to United States v. Windsor, the case adjudicating the constitutionality of the Defense of Marriage Act, the federal statute that no public official wanted to enforce or defend.  A majority of justices found that because the Speaker of the House of Representatives authorized a Bipartisan Legal Advisory Group to take the place of the U.S. Department of Justice to defend the law, the court could recognize the parties’ standing to appear before the court.  That slim majority of justices also reached the merits of the case to find DOMA invalid under the U.S. Constitution.  The opinion of the court, written by Justice Kennedy, uses an Equal Protectionish standard to defeat the law.  Although there is no Equal Protection Clause that would directly apply to federal law, courts have long incorporated the principles of equality and fairness from their 14th Amendment Equal Protection case law into 5th Amendment Due Process Clause analysis.  Here the court’s argument is that when a state, such as New York, confers legal status on individuals (by recognizing the validity of their marriage) it is unconstitutional for the federal legislature to impose legal disabilities and restrictions on the very class of persons that state law sought to protect.  The court viewed the federal government’s disparate treatment of a subset of state-sanctioned marriages as particularly untoward because DOMA’s standard for determining who would and who would not receive federal benefits had both the purpose and principal effect of harming, casting moral opprobrium upon and depriving legal benefits of, members of a group of citizens who have long been subjected to public hostility and scorn.  However, the court did not use Equal Protection analysis to designate sexual orientation as a legal classification of which courts ought to be suspect or quasi-suspect (like laws that use race or gender to distinguish one’s treatment under the law).  The court mentions, but does not analyze, DOMA’s legislative history which justifies the law in “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

Justice Scalia’s dissenting opinion in Windsor picked up on this thread when he referred to his longstanding view that the constitution has essentially no interest in whether or not the government regulates immoral behavior, including same-sex marriage, drinking, or gambling—alluding to his view of a moral equivalence and of equivalent justifications for moral opprobrium of each.  But by taking a closer look at these three things it’s apparent that the justifications that support laws regulating them are vastly different.  While the constitution may have no interest in whether or not the government regulates the morality of the populace, by constructing a democratically governed society, the constitution does create a procedural framework designed to ensure that the norms that regulate the conduct of the people could have been reached via democratic procedures, could have been accepted through the process of political discussion and debate, and are not dependent upon claims to authority that stand outside of or above the authority of the constitution itself.  The difference between regulating same-sex marriage (and same-sex sex, as Scalia writes) and regulating gambling or drinking are that the reasons proffered for condemning homosexuality are not supported by the same kinds of evidence of social harm available for regulating the other two.

The decision to strike down DOMA outraged many Americans who both disagree with their outcomes and see them as threats against their religious freedom.  But religious freedom should not be confused with the political power to enforce by law a moral norm because it has deep roots in tradition.  This aim was explicit in the DOMA legislative history and implicit in efforts to amend the California Constitution to ban same-sex marriages.  To the contrary, religious freedom includes the ability of citizens to debate the authority, use, and interpretation of scripture, and to reject the authority of scripture to govern the social order.  Religious freedom also includes the freedom to reject any claims to authority that are not grounded in reasons all citizens could rationally accept as valid.  The most outspoken critics of this pair of rulings include individuals whose moral compass is calibrated according to a literal interpretation of the Christian Bible, such as fundamentalist Christians, and those whose views on a few issues are cemented in a centuries-old tradition of biblical interpretation, such as members of the Roman Catholic hierarchy.  However, the amicus briefs filed by religious communities who celebrate same-sex marriages illustrate that there are large numbers of religious Americans whose principled support for legalizing and normalizing same-sex marriage is grounded in different interpretations of the same scriptural authority.  They view the moral imperative commanded by their religious traditions to dictate equality and fairness, and they see no obvious or inherent conflict between religious freedom and same-sex marriage.  They view these rulings as a victory for equality, a step towards justice for a long persecuted and reviled minority, and a testament to the Lord’s wonderworking power.

The exaggerated panic about the cataclysmic consequences to their religious freedom expressed by a vocal subset of the religious American populace has less to do with their ability to freely practice their faith than it is about their fear of not retaining a status as standard bearers for the moral authority that regulates the social order as a whole.  In their view the court has usurped that position and is now imposing upon them moral dictates that are contrary to their deeply held principled convictions.  However, in point of fact, the court was very careful to do no such thing.  The court’s opinion did not state that the 5th Amendment’s principles of equality and fairness prohibit discrimination against homosexual citizens, or prohibits differential legal status vis á vis heterosexual citizens.  The court did not, but perhaps could have used another fundamental-rights line of analysis, i.e., that DOMA essentially discriminated among married partners on the basis of whether they shared and accepted the ‘moral conviction that heterosexuality better comports with Judeo-Christian morality.’  It permits citizens to accept or to dissent from this traditional norm.  For this reason, the decision safeguards religious freedom.

The real test for how religious freedom will fare in light of these decisions, however, will be on the question of exemptions.   DOMA was signed into law in 1996.  But in the intervening years public opinion on the moral acceptability of same-sex marriage has shifted.  The Pew Forum on Religion and Public Life recently released the findings of its study on these attitudes.  It found that today there is more support for same-sex marriage than opposition to it (50% and 43%, respectively).  But embedded in these numbers are several more important findings.  First, this represents a shift in favor of same-sex marriage, as compared with their 2001 study, which found that more Americans opposed same-sex marriage than not (57% to 35%, respectively).  What’s more, this shift can be seen, to greater and lesser degrees, across virtually all demographics, including among theologically conservative Christians.  But this shift is particularly evident in generational comparisons.  Millennials are almost twice as accepting of same-sex marriage as their grandparents.  But even their grandparents are more likely to favor same-sex marriage than they were just 12 years ago.  This means that, not only will theologically conservative opponents of same-sex marriage not be the standard bearers of the nation’s morality, they will likely represent a shrinking minority viewpoint.

That is the point at which there will be a real question as to whether their freedom to dissent from a norm favoring same-sex marriage will be guaranteed.  Could religiously conservative florists, for example, be legally compelled to service same-sex weddings?  It’s hard to imagine such a scenario, especially when many other florists would probably be eager to accept the economic bounty that such weddings would provide.  But if a state passed a law making such a refusal illegal, would the florist have any recourse? Under current First Amendment jurisprudence, the answer would be no.  Since Justice Scalia’s opinion in the 1990 decision Employment Div. v. Smith, the Supreme Court does not view the First Amendment as dictating any conscience-based exemption from an otherwise valid law of general applicability.  That opinion was widely unpopular and led Congress to enact the Religious Freedom Restoration Act, which instructed the court to apply the strict scrutiny standard to laws that burdened the free exercise of religion.  However, because that law clearly transgressed the separation of powers, it would not help our pious florist.  Many states that have enacted same-sex marriage laws have included in the language of the law exemptions on religious grounds.  But what if the U.S. Congress enacted a federal law that would make it illegal to refuse to service same-sex weddings?

Legal commentators are divided on this scenario.  On the one hand, if the Smith decision continues to stand, there would be no right to a religious exemption from the law.  Furthermore, after passage of the 1964 Civil Rights Act, racially discriminatory practices were not exempt from federal law, even on religious grounds.  Bob Jones University famously lost its tax-exempt status for refusing to change its policy prohibiting interracial dating to conform to federal law.  On the other hand, even federal laws cannot force people to change their views.  This is not to say that moral convictions are ever immutable and unchanging, just that they cannot be coerced into changing.  Moral convictions can bend to persuasion but only stiffen when challenged by force.  Justice Oliver Wendell Holmes famously wrote, “the best test of truth is the power of thought to get itself accepted in the competition of the market.”  Perhaps this line of reasoning ought to be understood to grant a sphere of liberty for our pious florist.  Bob Jones University did ultimately change its policy in 2000.  By then its stance against racial integration had failed to win the hearts and minds of the American populace.  To the contrary, their discriminatory stance was by then generally condemned as unprincipled and immoral.  Reconsidering the nature and scope of the religious freedoms guaranteed in the First Amendment, in light of Justice Holmes’ dictum, could perhaps allay the fears of opponents of same-sex marriage that they could somehow be compelled by force of law to sanction homosexuality.  Rather, supporters of gay rights can hope that their detractors will one day be persuaded to change their minds, and those detractors will remain free to pray that they are wrong.