Law & the Courts

One Year after Obergefell

Outside the Supreme Court, April 2015 (Joshua Roberts/Reuters)
The year since Obergefell v. Hodges was decided has proven that courts should leave democratic debate to the people.

One year ago, the U.S. Supreme Court declared in Obergefell v. Hodges that the United States Constitution mandates same-sex marriage. But in doing so, the court improperly cut short the process of democratic debate that our Founders bequeathed to us and that the Constitution envisioned.

Justice Anthony Kennedy, writing for the majority, proclaimed that the court had discovered a new “liberty promised by the Fourteenth Amendment.” But in mistaking a political movement for a constitutionally protected right, the court ignored the text and meaning of the Constitution and its own prior jurisprudence.

The court has traditionally been loath to create new constitutional rights because doing so “place[s] the matter outside of the arena of public debate and legislative action,” where most issues, such as the definition of marriage, properly belong. But unfortunately this longstanding policy of constitutional restraint evaded the court in Obergefell.

The Obergefell court’s use of substantive due process is reminiscent of its holding in Roe v. Wade. By announcing a right the Constitution did not contemplate, the Roe court cut short an ongoing public debate on a matter of momentous public significance, and thus engendered decades of rancor and protracted constitutional litigation, even as to modest abortion reforms dedicated to ensuring maternal health and preventing fetal pain. Roe teaches us that when the Supreme Court creates a new right not found in the Constitution, it distorts the political process, prevents reasonable compromise, and inevitably crowds out other less fashionable rights.

A similar dynamic now presents itself in Obergefell. By relegating a complex matter of social policy to a once-and-for-all, judicially mandated approach, the court deprived the American people of the opportunity to resolve the matter as the Constitution contemplates — by debate, persuasion, and compromise.

Not surprisingly, by preventing the use of these common tools of self-governance, Obergefell, as with Roe before it, has spawned not peaceful coexistence but more rancor and conflict.

Proponents of same-sex marriage had for years blithely dismissed concerns that imposing a new definition of marriage would endanger or eclipse the rights of Americans who continued to believe that marriage is the union of one man and one woman. But those dismissals ring hollow now, as it has become increasingly clear that same-sex marriage activists brook no dissent. Same-sex marriage and religious liberty, it turns out, represent a zero-sum game.

A few examples from this past year illustrate this inevitable conflict:

‐Just two days after Obergefell was decided, Time magazine published an article by New York Times religion contributor Mark Oppenheimer in which he concluded that the time had come to “abolish, or greatly diminish” the tax-exempt status of churches and organizations that “dissent from settled public policy on matters of race or sexuality.” Oppenheimer suggests that churches can still hew to their beliefs about marriage, but that punishment for those beliefs is now appropriate, even to the point of greatly impeding their charitable endeavors on behalf of the less fortunate. And that is because, as Oppenheimer claims, the issue is now “settled.” But we know that Obergefell did not settle anything about the nature of marriage or people’s beliefs about it.

‐The same month that the Supreme Court decided Obergefell, the North Carolina General Assembly provided a reasonable accommodation for magistrates and other public officials who continue to hold a religious belief in man–woman marriage. Senate Bill 2 permits magistrates to opt out of solemnizing marriages altogether if they have religious objections, but it also ensures that no citizen will ever be denied the right to marry or be inconvenienced in their desire to do so. Yet some deemed even this modest measure to be unacceptable. So in December 2015, several plaintiffs filed suit against the state, alleging that the law violated the Establishment Clause, the Due Process Clause, and the Equal Protection Clause of the U.S. Constitution. While those assertions have no merit, the plaintiffs are relying on Obergefell as authority for their claims, and long-established rights such as the free exercise of religion now hang in the balance.

‐A local reporter placed a phone call to Judge Ruth Neely of Pinedale, Wyo., to expose her religious beliefs about marriage. He asked whether she was “excited” to perform same-sex marriages now that they had become legal in Wyoming. She responded honestly and told him that her religious belief is that marriage is the union of one man and one woman and that she therefore could not perform same-sex wedding ceremonies. After learning of these religious beliefs, the Wyoming Commission on Judicial Conduct and Ethics brought charges against Neely, alleging that that she must be removed from her judicial positions because she communicated her religious beliefs about marriage. The commission thereafter recommended to the Wyoming Supreme Court that she be removed not only from her position as a circuit-court magistrate, where she possesses the authority but not the duty to solemnize marriages, but also from her position as a municipal judge, where she possesses no authority to solemnize marriages. This case shows that some governments are reading Obergefell as a license to punish any dissent or polite disagreement with same-sex marriage and eliminate it from the public square.

These recent examples illustrate what happens when courts decide issues that should be left to the people: Compromise and debate cease, with intolerance taking their place. If we are to contain and ultimately remedy this, we must follow in the footsteps of those who opposed Roe and steadfastly insist that a continued belief in man-woman marriage does not exclude Americans who hold to that time-honored belief from the public square.

Ryan T. Anderson, Ph.D.

William E. Simon Senior Research Fellow

Heritage Foundation

Author, Truth Overruled: The Future of Marriage and Religious Freedom

Dr. Tony Evans

President, The Urban Alternative

Dr. Robert P. George

McCormick Professor of Jurisprudence

Princeton University

Bishop Harry Jackson

President, High Impact Leadership Coalition

Jerry A. Johnson, Ph.D.

President & CEO

National Religious Broadcasters

Carmen Fowler LaBerge

President

Presbyterian Lay Committee

Dr. Russell Moore

President

Ethics & Religious Liberty Commission of the Southern Baptist Convention

Penny Nance

CEO & President

Concerned Women for America

John Stonestreet

President

Colson Center for Christian Worldview

Mark Tooley

President

The Institute on Religion & Democracy

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