“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” So said the Supreme Court, speaking through Justice Anthony Kennedy, nearly three years ago in Obergefell v. Hodges. In that case, a bare five-member majority mandated that civil marriage be available to same-sex couples “on the same terms and conditions as opposite-sex couples.”
The Court explained its holding by saying that “when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”
In the final examination I gave to my constitutional law students, I asked them whether these two passages, located within the same paragraph near the end of the Obergefell opinion, make “coherent sense. Why or why not?”
My students struggled with that one.
Next fall I might ease their pain by focusing on just one of the passages. Here is my current draft of that question: “Would a law or public policy that carves out a safe harbor for people holding those ‘decent and honorable religious’ convictions put the state’s ‘imprimatur’ on a ‘demeaning’ and ‘stigmatizing’ belief, and therefore be unconstitutional?”
Not Just Same-Sex Weddings—Same-Sex Marriage
The Masterpiece Cakeshop case, which will be decided by the Court any day now, will shed some light on the matter. In that case, a wedding-cake maker was sanctioned for refusing to bake for a same-sex wedding celebration. It is an important piece of litigation. But Masterpiece Cakeshop is going to leave my students still struggling. The facts and arguments in that case make it nearly a perfect vehicle for establishing that the First Amendment does justify some limits on making everyone bow to the same-sex marriage idol. Still, the reach of any favorable holding there will be quite limited.
For Masterpiece Cakeshop is centrally a free speech case, not one about freedom of religion. It pertains solely to wedding vendors, and only to those vendors whose contributions to the celebration count as “artistic speech.” The protection of more prosaic workers, such as bartenders and caterers (at least so long as they do not invent a specifically lesbian Margarita or a “gay” swordfish platter), are not in view. Besides, the Court’s decision in Masterpiece is likely to be five-to-four, no matter which way it goes. The grounds articulated for the result will probably be narrowly drawn, and no clearer than were those in Obergefell (if only because Justice Kennedy is expected to be the deciding vote).
Most important, Masterpiece Cakeshop does not touch the really compelling social challenge of Obergefell, which is not about working same-sex weddings but about living with same-sex marriage. None of us needs legal permission to decline an invitation to the wedding of two men or two women. Very few of us will even be asked to do the flowers at one. We can more or less effectively steer clear of same-sex nuptials, no matter what the law is.
But all of us have to face—and will face for the rest of our days—the challenge of what to do about the two married guys who apply to live in your co-op, or who want you to take their family portrait, or who will soon join your school’s PTA, or who will eventually come to you for marital counselling. Same-sex weddings are the stuff of save-the-date and a precise GPS location. Same-sex marriage is everywhere, all of the time. One cannot hide from it.
Of course, people have had to live with irregular sexual relationships since the dawn of time. But legalized same-sex marriage is different, and worse, than anything that has plagued societies before. For one thing, such relationships are about as far distant from real marriage as any relationship could be. Second, recognizing the sexual consortium of two men or two women as a marriage settles conclusively that marriage as such is sterile. (Indeed, that was the fundamental issue at stake in the whole fight over same-sex marriage.) Third, there are no fig leaves available to obscure or fudge the manifest immorality, and parody of marriage, presented by same-sex relationships. An opposite-sex couple in a bad marriage is not detectable as such at a glance. A merely cohabiting man and woman will not be wearing wedding rings and will not expect to be addressed as if they are spouses. And in decades and centuries past, those in irregular sexual relationships rarely demanded that their liaisons be treated as respectable and good, much less on a par with the procreative marriages of man and woman.
The everyday challenge of Obergefell is whether those of us who hold the “decent and honorable religious” conviction that it is impossible for two persons of the same sex to marry will be accorded the legal and social space we need in order to live in accord with our convictions. The question at hand is whether we will instead be forced to contradict our convictions in word and deed, day in and day out. Chief Justice Roberts wrote in Obergefell:
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.
Catholic Social Services vs. the City of Philadelphia
Last week (on May 16), Catholic Social Services and several foster care parents sued the city of Philadelphia to settle one of those “hard questions.” CSS was recently ranked by the city as the second best of the twenty-eight agencies with which it contracts for foster care placement and support. Its record of finding homes for difficult-to-place children is unsurpassed. On March 15 of this year the city announced that it was nonetheless suspending referrals to CSS. Because the city monopolizes these referrals, its decision was tantamount to closing down CSS’s foster care operation.
The hanging offense? Even though CSS avers in its complaint (prepared by lawyers from the Becket Fund, the great religious liberty firm) that it has never received a complaint from a same-sex couple, it does adhere to Church teaching about marriage. The complaint makes clear enough that CSS would conscientiously refuse to do the work prescribed by law to certify a same-sex “married” couple as foster parents. CSS would, however, refer them to other agencies that would.
Philadelphia is trying to drive these “decent and honorable” people from the field. The mayor is quoted in the CSS complaint as declaring that “we cannot use taxpayer dollars to fund organizations that discriminate against” people in same-sex marriages. “It’s just not right.” The city council professed to be shocked—shocked!—to discover that some contracting agencies have policies, rooted in religious beliefs, that prohibit placement of children with “LGBTQ people.” But the Catholic Church’s position on marriage is no secret. The CSS complaint even points out that the “City has been aware of Catholic Social Services’ religious beliefs for years.” For example, the city waived repeatedly for CSS the obligation of city contractors to provide benefits to same-sex spouses of employees.
Stamping Out Dissent by Targeting Religious Believers
Justice Alito worried in Obergefell that the legal redefinition of marriage would be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” He forecast that the decision would “be exploited by those who are determined to stamp out every vestige of dissent.” Alito concluded: “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.”
Cases besides the new one involving CSS are testing Justice Alito’s prowess as a prophet. Masterpiece Cakeshop is one. Kim Davis (the Kentucky marriage license clerk) tested it too. But she was a public official, and the keener challenge of Obergefell is to non-governmental actors such as churches and social service providers. Several states have passed laws precisely protecting foster-care and adoption providers from the depredations of same-sex civil marriage. Some of these have been challenged in court, most notably in Michigan. But most states will not enact such protections.
The comprehensive CSS complaint includes some freedom of speech considerations; in this way, it tracks the Masterpiece Cakeshop litigation. But the heart of the case is surely this allegation: “The City has targeted Catholic Social Services because of its religious beliefs.” (Elsewhere, the complaint states starkly that the city “has decided to penalize [CSS] because the City disagrees with its religious beliefs.”) The legal causes of action listed by Becket are almost all based on the federal Constitution and especially on the religion clauses of the First Amendment. The outcome of the CSS litigation will therefore go a long way towards clarifying whether those who adhere to the moral truth about marriage will be made outcasts from the public square.
The Becket Complaint in CSS does not go into the reasons why no Catholic agency—in fact, no individual Catholic or other person of good sense—should place a child in foster care or for adoption with a “married” same-sex couple. Those grounds include the obvious prospect that doing so would mean ratifying that the couple is indeed married. To the objection that this lie might instead be verbally finessed by limiting any ratification to expressions about the existence of a “civil” marriage, the answer is this: “marriage” is not only the name of an esteemed relationship, whose meaning ought to be preserved even by the civil law of a pluralistic society. Marriage is also the principle of all sexual morality. One compact way to express the substance of sexual morality is to say that procreative-type acts of the (truly) married couple are morally upright; other sexual acts—being non-marital—are for that reason immoral. Any child placed with a gay or lesbian couple is therefore put under a spell of misinformation and bad example about the nature and meaning of marriage. He or she can scarcely be expected to receive sound example and advice from his or her parents on the subject of sexual morality.
So far considered, then, placement with a same-sex “married” couple is a grave moral hazard to the child. If and when the child finally is exposed to the truth about marriage and sexual morality, he is much more likely to reject it, for accepting it would involve repudiating the relationship of those who have cared for him and loved him for years, if not decades. The child is then placed in the awful position of having to choose between filial devotion and adherence to the truth. It is a cruel choice—one that no child should be forced to make.
Gerard V. Bradley is Professor of Law at the University of Notre Dame Law School and a Senior Fellow of the Witherspoon Institute, where he is Chair of the Academic Committee of the Simon Center on Religion and the Constitution.