Redefining Marriage Would Erode Religious Liberty and Free Speech Rights of Citizens and Churches


Finding a right to same-sex marriage in the Fourteenth Amendment would threaten the religious liberty of citizens and organizations who support marriage and silence or chill the speech of dissenters.

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Among the many friends-of-the-court briefs in support of the states in the current same-sex marriage litigation, three especially noteworthy briefs have been filed by religious organizations, public speakers, and scholars concerned about religious liberty and free speech. The ecumenical breadth and numerical strength they represent is impressive. One expresses the combined views of the National Association of Evangelicals (NAE), the Ethics & Religious Liberty Commission of the Southern Baptist Convention, The Church of Jesus Christ of Latter-day Saints (“Mormons” or LDS), the Missouri Synod of the Lutheran Church, the Christian Legal Society, and several denominations affiliated with Evangelical Protestantism. A second brief was filed by the United States Conference of Catholic Bishops. Together, these groups represent the religious affiliations of more than 130 million Americans—approximately 40 percent of the country.

The Protestant/LDS brief (which I worked on) and the Catholic bishops’ brief raise similar themes. The signers of both briefs reject the notion that support for man-woman marriage is founded on animus and that the marriage laws can be struck down on that basis. They also warn that elevating sexual orientation to a protected class or same-sex marriage to a fundamental right would impede religious liberty.

A third brief, filed by religious organizations, public speakers, and scholars concerned about free speech, explains the ways in which those who do not agree with same-sex marriage have been actively silenced or chilled in speaking their views. Given the importance of the freedom of speech to political and religious minorities, this is especially disturbing.

Religious Support for Man-Woman Marriage Is Not Based on Animus

Support for marriage is not founded on bigotry, hatred, or irrational prejudice.

The Protestant/LDS brief explains that their support for man-woman marriage is based on affirming the importance of traditional marriage (as opposed to vilifying homosexuals), combined with centuries of practical experience counseling with and ministering to intact and broken families, single mothers, and functionally fatherless children. Man-woman marriage is central to the history of the church, personal identity, and lived faith of millions of religious Americans.

Similarly, the Catholic bishops’ brief declares that their support for the legal definition of marriage as the union of one man and one woman is based upon love, justice, and concern for the common good. No other institution joins together persons with the natural ability to have children and unite any children of the union with their own mother and father.

Ultimately, the briefs argue that convictions supporting traditional marriage express truths that religious believers and faith communities have held for centuries about the positive value of man-woman marriage. These beliefs predate any conception of homosexuals as a discrete and insular minority, much less same-sex marriage. The notion that traditional marriage laws exist for the purpose of harming gays and lesbians is empirically false.

Further, state laws defining marriage as the union of one man and one woman are not invalid simply because they overlap with, or are informed by, religious or moral viewpoints. Many of the most significant social and political movements in our nation’s history were motivated by religious and moral considerations. Indeed, advocacy to redefine marriage to include two people of the same sex is itself motivated by arguments that, however flawed in our view, have religious and moral roots.

Traditional Marriage Laws Cannot Be Struck Down on the Basis of Animus

Marriage laws cannot be held invalid under the Fourteenth Amendment, and particularly not on the basis of animus.

As the Protestant/LDS brief explains, the animus doctrine is extremely limited in scope. It is applicable only when the sole purpose of a statute is to harm a group, as evinced by an unprecedented departure from ordinary governing standards. Marriage amendments and statutes—which merely codify the definition of marriage that until a decade ago existed continuously and ubiquitously since before the Founding, and which advance many governmental interests unrelated to anti-gay animus—do not qualify as such a departure under Supreme Court precedent.

The definition of marriage distinguishes and specially supports certain forms of conduct that further society’s interests. Both briefs affirm, based on long experience, that a home with a mother and a father is the optimal environment for raising children, an ideal that state law properly encourages and promotes. Given the unique capacity for reproduction of the male-female couple and the unique value of homes with a mother and a father, it is reasonable and just for a state to treat the union of one man and one woman as having a public value that is absent from other intimate sexual relationships.

The Catholic bishops’ brief points out that more than a quarter of the nation’s children currently live with only one birth parent. Government support for a marital bond between the biological mother and father of a child reduces, or prevents further increases in, the incidence of single parenthood and the consequent burdens it places on the custodial parent (usually the mother) and government welfare programs.

While the law may not draw classifications based on mere thoughts, beliefs, or inclinations, it can and routinely does distinguish between types of conduct and aids those it finds most in need of protection and support. Confining marriage to man-woman unions does not imply hatred toward the many other intimate arrangements that the law permits but does not endorse. The right to be left alone does not entail a right to public affirmation and support for one’s intimate relationships.

Recognizing a Right to Same-Sex Marriage Would Impede Religious Liberty

A Supreme Court ruling declaring a constitutional right to same-sex marriage would have a disastrous impact on religious liberty.

As the Protestant/LDS brief explains, a decision declaring state marriage laws void for animus would disparage those religious organizations and persons who believe deeply in marriage. Such a decision would stigmatize them as bigots akin to racists. That stigma would impede their full participation in democratic life, as their beliefs concerning marriage, family, and sexuality are placed beyond the constitutional pale. Because religious people cannot renounce their scriptural beliefs, a finding of animus would consign believers to second-class status as citizens whose doctrines about vital aspects of society are deemed presumptively illegitimate. The misattribution of animus would deprive believers and faith communities of their rights to the free exercise of religion, free speech, and democratic participation. Assaults on religious liberty, already under pressure, would intensify.

Likewise, a ruling that sexual orientation is a suspect class entitled to heightened scrutiny would harm religious liberty. Judicial suspicion would quickly follow, directed at laws but also at the religious beliefs and practices of religious organizations and believers themselves. If the Court were to declare sexual orientation a suspect class, claims soon would arise urging that the government has a compelling interest in barring sexual orientation discrimination so as to justify the suppression of religious practices in the private sector concerning employment and charitable services. Because scriptural beliefs regarding marriage, family, and sexuality are central to religious institutions and the religious way of life, recognizing sexual orientation as a suspect class would generate countless new conflicts.

Indeed, a constitutional right to same-sex marriage under any theory would generate tensions with religious freedom and related interests across a wide array of religious, educational, charitable, and cultural fronts. As the Catholic bishops’ brief warns, because marriage so pervades civil and social life, redefining marriage as a matter of constitutional law would soon create extensive church-state conflicts. Where states have redefined marriage, conflicts between new claims of equal treatment with claims of religious liberty have already arisen. A Supreme Court ruling imposing same-sex marriage on the country would needlessly embroil the judiciary in conflicts between church and state for generations to come.

Directly or not, a Court ruling creating a right to same-sex marriage would convey what Justice Kennedy has decried as “hostility toward religion . . . inconsistent with our history and our precedents.”

Constitutionalizing Same-Sex Marriage Would Weaken Free Speech

Religious freedom aside, the ability to speak freely is fundamental to both personal dignity and the strength of a self-governing republic. As Justice Kennedy has observed:

At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal.

Often, speech, religion, and political issues are intertwined. Where would the nation be if the abolitionists, deeply convicted by their faith, had been silenced in their quest to change hearts and minds over slavery? Where would we be if the Reverend Martin Luther King, and others like him, had not been able to speak freely from Black Church heritage on human dignity and liberty?

It is commonplace for there to be a moral dimension to issues in the public square. To countenance politically correct moral views but to dismiss less popular moral views as being driven by animus simply because they stem from religious principles is a double standard. Free speech protections are all the more crucial for those willing to dissent from the views most dominant in our culture.

This concern is not just abstract worry. It stems from real-life events:

- A 19-year Marine Corps and Navy veteran chaplain was removed from the promotion list and detached for cause (essentially terminated) for privately expressing support for traditional marriage.

- An Atlanta Fire Chief authored a book in which he briefly stated his religious view that marriage should only be between one man and woman, for which he was suspended and then terminated despite no evidence of discrimination by him while at work.

- A District Health Director for the State of Georgia was fired after state officials reviewed his sermons as a lay pastor that marriage should be reserved for the union of one man and one woman.

- A Missouri university student who refused on religious grounds to complete a class assignment requiring her to write a letter to her state legislator lobbying for same-sex adoption rights was charged by the university with misconduct, questioned by the Departmental Ethics Committee at length, and informed that her degree may be withheld.

And there are more such stories. Thus, it is not surprising that fifty-eight supporters of same-sex marriage as a matter of policy released a public statement expressing their concern for the free speech rights of those opposed to same-sex marriage. A ruling that same-sex marriage is protected by the Constitution will exponentially magnify the current pressure by federal agencies through policies, manuals, and training materials that will impose speech codes on employees, silencing or chilling those who are out of step.

The Constitution marks a wiser course—that is, leaving the people free to decide the great marriage debate through their state democratic institutions. Allowing all citizens an equal voice in shaping their common destiny is the only way the diverse views of a highly diverse people can be respected on this matter of political, social, and religious importance. Respect for the principle of equal citizenship and equal participation in the democratic process is the only way that the contemporary controversy over same-sex marriage can be resolved without inflicting harm on millions of religious believers and their institutions.

Carl H. Esbeck is the R.B. Price Professor of Law Emeritus at the University of Missouri.

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