U.S. v. Windsor and the Future of Religious Liberty

As we are all aware by now, on June 26 the Supreme Court of the United States issued opinions in the cases of Hollingsworth v. Perry and United States v. Windsor. In Hollingsworth, the Court held that citizens have no legal standing to defend in federal court those initiatives for which they signed petitions, campaigned, and voted. That is troubling enough. It is Windsor, however, which struck down part of the Defense of Marriage Act, that is most significant for those of us concerned about the future of religious liberty in the United States.

As has been noted by many commentators, Justice Anthony Kennedy, writing for the majority, adopted the language and assumptions of the most radical homosexual rights activists. He dismissed the notion that there is an ongoing legitimate debate about the very nature of marriage. For Justice Kennedy, marriage is simply an action of the state to recognize the nobility and dignity of a particular relationship. There is no imaginable rational reason to see marriage as an objective reality. Opposition to expanding the definition of marriage to include any loving, committed sexual relationship can only be motivated by bigotry and a desire to harm those who are attracted to persons of the same gender.

How is this legal “reasoning” likely to affect future cases? Will it inevitably lead to greater threats to religious liberty than we have seen in recent years? In answering these questions, there are certain things we know for sure, others we can reasonably expect, and still others which remain very uncertain.

Here is what we know for sure. The old arguments for homosexual “marriage,” heard during the 1990’s and early 2000’s, are mostly dead. By “old arguments,” I mean those pleas which have persuaded many Americans to support same-sex “marriage:” many same-sex couples are in loving, committed relationships, but are unable to inherit from one another, enjoy hospital visitation rights, and other things to which married couples are entitled. These arguments, very understandably, are seen as justice issues by many Americans and it is hard to imagine how extending such benefits to same-sex couples could possibly affect marriage in a negative way. Let them live their lives in peace, with the rights that everyone else enjoys, the argument goes. How could that possibly affect anyone else in a negative way?

I am sure many Americans, including many who experience same-sex attraction, still see the issue in those terms. But, in the political and legal worlds, we have moved way beyond that. Homosexuality is now in the mainstream and is celebrated every day in our popular culture. The goal now, as is evident in Justice Kennedy’s opinion, is to force the acceptance and celebration of same-sex “marriage” by everyone as a condition of participation in the economy and our national life. Already, major legal battles are less about the rights of homosexual couples (which are increasingly taken for granted) and more about the rights of florists, photographers, and caterers to choose not to participate in homosexual “weddings.”

There is something else that we can reasonably expect, though I suppose there is a small chance it might not actually happen. As has been noted by many, Justice Kennedy’s opinion provides the legal basis to challenge every state marriage law in the nation that doesn’t recognize homosexual “marriage.” Even laws that do not bear directly on constitutional rights must still have a rational purpose and seek that purpose in a rational way. Kennedy declares, with the full authority of the Supreme Court, that the only possible motives for believing in marriage as an objective institution oriented toward the procreation and rearing of children are malice, hatred, and a desire to deny people their basic rights.

Justice Kennedy also gives a great deal of time to the notion that states have the authority to define marriage. Some have argued that this protects states that choose to define marriage to be between one man and one woman. A straightforward reading of the opinion, however, at least implies that this only works one way. States can bestow dignity upon same-sex couples, Kennedy argues, and no one can take that away. This is why DOMA is unconstitutional. By this logic, states that don’t recognize same-sex “marriage” are denying people of this dignity. The Court didn’t universalize homosexual “marriage” with this decision, but they paved the way to do that in the very near future.

Despite all of this, much remains uncertain. In this uncertainty lies our hope. As noted above, the growing support for homosexual “marriage” in recent years is largely because of what is good in the American people. Though the logic may at times be misguided, Americans see people who love each other being denied what seem to be basic rights enjoyed by legally-recognized families. As those concerns are replaced by frequent legal action against private businesses and even religiously-affiliated organizations for failure to participate in “marriage” ceremonies which violate sincerely-held beliefs, will public opinion continue to support the cause?

Let us pray that newly invented “rights” do not ultimately prevail over the right most central to human dignity: the freedom of conscience.

© 2013. Jason Hall. All Rights Reserved.