The New Intolerance (Part 7)

Freedom on the Altar: American Religious Freedom in the Wake of the Supreme Court’s Recent Same-Sex Ruling

 

Judges Inventing Rights

In writing this week’s post, I feel a little like Job, when he said, “For what I fear comes upon me, and what I dread befalls me” (Job 3:25). In prior posts, we have warned that the Supreme Court’s imminent ruling favoring same-sex marriage could have a negative impact upon the free exercise of religion in America. We noted that this ruling will only compound and contribute to the “new intolerance” advanced by the left that is rapidly spreading throughout our land. In the much watched case Obergefell v. Hodges, the Supreme Court accepted for review four lower court rulings that struck down state bans on same-sex marriage as unconstitutional. Last Friday the High Court handed down its ruling. As expected, the Supreme Court used an allegorical method of interpretation to magically find a constitutionally protected right to same-sex marriage in the Equal Protection and Due Process clauses of the Fourteenth Amendment. I use the words “magical” and “allegorical” here since a bonafide right to same-sex marriage simply cannot be found in either the language or history surrounding the Fourteenth Amendment. Dissenting Justice Anthony Scalia well explained this point:

But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue…If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.1

Dissenting Chief Justice John Roberts also noted the lack of Constitutional basis for last Friday’s ruling:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it (Underlining and emboldening added).2

There certainly is much to legitimately criticize regarding last week’s judicial power grab. However, here I want to confine my remarks to the deleterious impact of last week’s decision on the Free Exercise of Religion.

 

A Zero-Sum Game

Whenever a right is manufactured out of wholesale cloth, as our Supreme Court did last Friday, then another right is automatically sacrificed in the process. In this sense, the creation of rights is a “zero-sum game.” In other words, when somebody wins, somebody else automatically loses. Chief Justice John Roberts, in his dissenting opinion, articulates this zero-sum game between an imaginary same-sex marriage right and the actual First Amendment rights that are clearly expressed in the Constitution:

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. 1.3

Sadly, the judicial activism of last week has caused the Free Exercise of Religion, as guaranteed by the First Amendment, to suffer a significant body blow. To be sure, the majority opinion paid at least some lip service to those who continue to have a moral objection to the homosexual lifestyle. Justice Kennedy is his majority opinion noted:

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.4

Teaching vs. Exercise

Despite this mild concession, a significant sleight of hand is going on here. To become aware of it, Kennedy’s vocabulary must be thoroughly scrutinized. While Kennedy is conceding the right to “advocate” and “teach” against same-sex marriage by the religiously inclined, conspicuously omitted from Kennedy’s carefully chosen words is the actual wording of the First Amendment, which involves “the free exercise of religion.” This glaring omission was not lost to Chief Justice John Roberts in his dissenting opinion:

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 same-sex 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. 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 (Underlining and emboldening added).5

Is it simply straining at gnats to draw a distinction between “advocacy” and “teaching” on the one hand and “free exercise” on the other? This distinction is neither arbitrary nor myopic, but rather is far more important than most realize. “Teaching” and “advocacy” convey that First Amendment protection covers only what one says as a result of his sincerely held religious beliefs. “Free exercise,” on the other hand, applies First Amendment protection to what one does as a consequence of his sincerely held religious beliefs. Of the latter category, note how Roberts enumerates several examples, such as when “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” or the fact that “tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.” Will the Free Exercise of Religion protection afforded by the First Amendment cover such activities when the behavior of those with sincerely held religious beliefs comes into conflict with the same-sex agenda? Kennedy’s majority opinion leaves little comfort to Bible based believers.

 

The majority’s substitution of “teaching” and “advocacy” for “free exercise” also did not escape the notice of dissenting Justice Clarence Thomas. In His dissenting opinion, he, like Roberts, well observed:

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 (Underlining and emboldening added).6

 

Thus, American religious freedom is not just about words, but it is also about action. This is a critical distinction apparently lost to the majority.

 

Tragically, in the wake of Friday’s decision, the political left already seems bound and determined to drastically shrink the First Amendment religious protections that Americans typically take for granted. Wisconsin Senator Tammy Baldwin apparently believes that First Amendment religious protection applies only within religious institutions:

On Saturday, the day after the Supreme Court’s related ruling, Baldwin was on MSNBC’s “Up w/ Steve Kornacki” program. Baldwin was asked, “Should the bakery have to bake the cake for the gay couple getting married? Where do you come down on that?” Tammy Baldwin [responded]: “Certainly the first amendment says that in institutions of faith that there is absolute power to, you know, to observe deeply held religious beliefs. But I don’t think it extends far beyond that. We’ve seen the set of arguments play out in issues such as access to contraception. Should it be the individual pharmacist whose religious beliefs guides whether a prescription is filled, or in this context, they’re talking about expanding this far beyond our churches and synagogues to businesses and individuals across this country. I think there are clear limits that have been set in other contexts and we ought to abide by those in this new context across America” (Underlining and emboldening added).7

In other words, First Amendment religious protection is only applicable within the context of institutions of faith and not beyond.

 

Freedom of Worship vs. Religion

In recent days, commentators have similarly noticed a subtle shift in vocabulary amongst left-leaning public officials from “freedom of religion” to “freedom of worship.” Properly defining the free exercise of religion is critical in our time since many progressives seek to use the phrase “freedom of worship” in lieu of the phrase “freedom of religion.” The former phrase is far more restrictive allowing the government greater freedom to regulate religious conduct. Randy Sly notes:

Let’s be clear, however; language matters when it comes to defining freedoms and limits. A shift from freedom of religion to freedom of worship moves the dialog from the world stage into the physical confines of a church, temple, synagogue or mosque. Such limitations can unleash an unbridled initiative that we have only experienced in a mild way through actions determined to remove of roadside crosses, wearing of religious t-shirts and pro-life pins as well as any initiatives of evangelization. It also could exclude our right to raise our children in our faith, the right to religious education, literature or media, the right to raise funds or organize charitable activities and the right to express religious beliefs in the normal discourse of life.8

In other words, “freedom of worship” only guarantees freedom for religious speech in a house of worship. “Freedom of religion,” on the other hand, guarantees freedom of religious expression and behavior not only inside a house of worship but also outside of it. Furthermore, “Freedom of worship” only grants religious freedom of speech within the four walls of a church. The “Free Exercise of religion” concept, on the other hand, protects behavior by a sincerely held religious person from government political correctness regardless of where the religious person travels in American society. Our founders, influenced by the persecution that Christians have experienced throughout the centuries, wisely used the expression freedom of “religion” rather than merely “freedom of worship” when they drafted the Free Exercise Clause of the First Amendment.

 

The Plurality of Concerned Voices

Other dissenters in Obergefell v. Hodges also observed the deleterious impact that last Friday’s decision will have on American religious freedom. In fact, in an unusual display of judicial discord, four separate Supreme Court Justices wrote dissenting opinions. A concern over deteriorating religious freedom was a dominant theme expressed in these dissents. Note these chilling words by dissenting Justice Samuel Alito:

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.9

Equal concern was also expressed by dissenting Justice Clarence Thomas regarding our rapidly vanishing religious freedom protections as a consequence of last Friday’s ruling:

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. The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422–1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015). 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.10

Ideas Have Consequences

Ideas have consequences. Language matters. Inventing implied rights subtracts from our clearly expressed enumerated Constitutional rights. There is no way around this legal and political reality. The High Court’s ruling last Friday makes America less free and less tolerant toward people of sincere religious conviction. In our next few posts, we will observe how these advances of the gay rights movement are fitting into the identical pattern that Christ Himself predicted would manifest upon the earth just prior to His return. We will also note what we can practically do to curb this horrific invasion of our First Amendment rights.

 

(To Be Continued…)

 

 Endnotes


  1. See page 4 of Scalia’s dissenting opinion and also footnote 22 on pages 7 and 8. http://www.cnn.com/2015/06/26/politics/scotus-opinion-document-obergefell-hodges/ []
  2. See page 29 of Robert’s dissenting opinion. []
  3. See page 27 of Robert’s dissenting opinion. []
  4. See page 27 of Kennedy’s majority opinion. []
  5. See pages 27 and 28 of Robert’s dissenting opinion. []
  6. See pages 14 and 15 of Thomas’ dissenting opinion. []
  7. http://newsbusters.org/blogs/tom-blumer/2015/06/30/sen-tammy-baldwin-freedom-religion-institutions-faith-%E2%80%94-period.  See also http://rightwingnews.com/top-news/democrat-senator-first-amendment-makes-clear-christians-must-participate-in-gay-weddings/. []
  8. Randy Sly, “Obama Moves Away From ‘Freedom of Religion’ Toward ‘Freedom of Worship’?”, online: www.catholic.org, accessed 27 September 2010, 1. http://www.catholic.org/news/national/story.php?id=37390 []
  9. See pages 6 and 7 of Alito’s dissenting opinion. []
  10. See pages 14-16 of Thomas’ dissenting opinion. []

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