Same-Sex Marriage and Freedom of Religion

In Fulton v. City of Philadelphia, №19–123, the Supreme Court will soon decide whether a foster care placement agency may discriminate against same sex couples on the basis of religious belief. Not long ago though, two justices signaled their belief that the First Amendment protection of religion should not be made subordinate to the rights of same sex couples. Attached to the denial of the Petition for Certiorari in Davis v. Ermold, №19–926, decided October 5, 2020, Justices Thomas and Alito criticized the decision in Obergefell v. Hodges, 576 U.S. 644 (2015), and specifically decried the dismissal of those opposing same sex marriage as merely bigots. Justices Thomas and Alito were correct in their latter complaint. The Court had no business drawing conclusions about the animus of statutes prohibiting same sex marriage without reviewing evidence, and the Obergefell holding decided only two questions of law. In fact, the holding actually decided three cases that had been joined together, including Deboer v. Synder, 973 F.Supp.2d 757 (ED Mich. 2014). Only the Deboer case was decided following a trial with witnesses and no arguments were advanced against same sex marriage on the basis of religious belief. Indeed, I cannot begin to express the relevant doctrine as well as the court’s ruling following trial:

“Since the Court is unable [to] discern the intentions of each individual voter who cast their ballot in favor of the measure [to prohibit same-sex marriage], it cannot ascribe such motivations to the approximately 2.7 million voters who approved the measure. Many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage. Nonetheless, these views cannot strip other citizens of the guarantees of equal protection under the law. The same Constitution that protects the free exercise of one’s faith in deciding whether to solemnize certain marriages rather than others, is the same Constitution that prevents the state from either mandating adherence to an established religion, U.S. Const. amend I, or ‘enforcing private moral or religious beliefs without an accompanying secular purpose.’ Perry, 704 F. Supp. 2d at 930–931 (citing Lawrence v. Texas, 539 U.S. 558, 571, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003)).” Deboer at p. 772.

Despite such a clear conclusion of law, Justices Thomas and Alito continue to assert that the Obergefell decision impinges on freedom of religion, as enshrined in the First Amendment. A careful analysis proves that, to the contrary, only the decision in favor of same sex marriage could satisfy the First Amendment’s guarantee regarding the free exercise of religion.

Rather than continuing to discuss lofty principles or the history of marriage in various civilizations, I shall explain the problem and its resolution using a simple hypothetical situation. Suppose there is a religion that worships chickens. Those belonging refer to it as the Chicken Church and refer to themselves as Chickens, believing that “they are made in the image of a chicken.”

The Chicken Church teaches that, among its most sacred beliefs, a Chicken may not marry a non-Chicken, referring to a person who does not belong to their religion. Because some Chickens have disobeyed this rule by marrying non-Chickens in ceremonies presided over by a judge, the Chicken Church has made many public announcements about this prohibition; nonetheless, the behavior has continued. Fretting over this disregard for their beliefs, the Chickens hatch a plan: they urge followers to run for public office. Eventually, the Chickens take control of the majority of the seats in the state legislature, as well as the governor’s office. The Chickens then pass a law prohibiting Chickens from marrying non-Chickens.

Soon thereafter, a mixed couple, i.e., a Chicken and a non-Chicken, bring a lawsuit, alleging that the law is unconstitutional. Specifically, the couple argues that the law violates the First Amendment, which prohibits the government from passing any law “respecting an establishment of religion, or prohibiting the free exercise thereof….” The Chicken Church files an amicus curiae brief, arguing that striking down the law would prohibit the free exercise of religion. The couple’s attorney, however, explains that the Chicken Church and its members remain free to exercise their religion. Specifically, the attorney notes that the Chicken Church can order the edict on mixed marriages to its followers and the followers are free to follow it. Further, the attorney states that the lawsuit does not seek to order the Chicken Church to perform or even recognize mixed marriages; the attorney readily acknowledges that the Chicken Church shall maintain its authority to decide which marriages it will solemnize and recognize. Instead, the attorney argues that the lawsuit merely seeks to strike the law because it prohibits the government from performing mixed marriages. The attorney highlights the fact that the law enacts a religious edict of the Chicken Church and, therefore, it constitutes a blatant establishment of religion.

It is clear, in this example, that the hypothetical law must be struck down by the court; no law may enshrine a religious belief. Accordingly, same-sex marriage may neither be supported nor opposed on the basis of religious freedom. A civil statute providing for marriage must be based solely on secular reasons.

Arguably, a fundamental problem that clouds the clarity of this legal principle is the fact that people use the word “marriage” to refer to two very different ideas. Some people think of marriage as a religious institution, while others think of it as a law. It should be obvious that all are correct, the word can refer to both. It may help, when discussing legal proceedings, to distinguish religious marriage, which is solely regulated by religious institutions, from civil marriage, which is solely regulated by government.

In their statement, Justices Thomas and Alito cast the petitioner, Davis, as a victim of the Obergefell decision. Davis was a county clerk who refused to issue marriage licenses to same-sex couples, arguing that doing so violated her religious freedom. From the analysis above though, it is plain that Davis was not a victim; she was the offender. In flagrant disregard for the Obergefell decision, Davis deemed her religious belief to be the civil law of her jurisdiction. As with the Chicken Church, her behavior was strictly prohibited by the First Amendment. Had Davis occupied a position within a religious authority instead, she would have been protected by the First Amendment to decide who would be entitled to marry within her religion. Instead, Davis sought a post with the government, which must serve everyone regardless of their religious beliefs. Accordingly, Davis must obey civil laws in discharging her duties as county clerk, including the rulings of our court system. Those who wish to live a strictly religious existence may confine themselves to such a life, but they are not entitled to compel the rest of us to join them. The same logic applies to the Fulton case; the rules for placement of foster children cannot be premised on any religious belief.