Far from ending the conflict of moral and cultural values at the heart of the same-sex marriage debate, the Supreme Court’s June 26 decision declaring its discovery of a previously undiscovered constitutional right to same-sex marriage propels this struggle onto a broader front.
Given the long-range goal of the ideology driving this movement, that has always been certain to happen. For the ideological objective here is no less that a revolution in thinking and practice concerning sexuality that will either sweep marriage and religion aside or else sweep them along with it.
The immediate effect of the Supreme Court’s ruling in Obergefell v. Hodges is to legalize same-sex marriage throughout the United States. The majority opinion, predictably written by Justice Anthony Kennedy, says the 14th Amendment requires states to license same-sex couples to marry and to recognize same-sex marriages performed in other states. Kennedy was joined by the four justices of the court’s liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Roberts called the decision “an act of will, not legal judgment.” Scalia said the Kennedy opinion embodied “the mystical aphorisms of the fortune cookie.”
In the short run, the emphasis of the gay rights movement now becomes enforcing and expanding principles enunciated by the Supreme Court into areas like education and employment while at the same time punishing those who wish to withhold cooperation from same-sex marriage.
A top priority will be the enactment of new protections for gays and transgender persons at the federal level and in the 28 states whose existing laws do not already explicitly provide them. The Washington Post says the campaign will involve individuals and groups active in the drive to legalize same-sex marriage, with $25 million in support from “wealthy backers” of that effort.
As for religious groups and individuals, their priority is to secure federal and state protections for their right not to cooperate with same-sex marriage as an exercise of their religious liberty.
That may not be as easy as it sounds. In a Washington Post op-ed column on the morning of the Supreme Court decision, the deputy legal director of the American Civil Liberties Union said her activist organization opposes the principal existing federal law of this kind, the Religious Freedom Restoration Act, as an obstacle to some groups in obtaining things the ACLU thinks they should want.
As an instance of what the ACLU objects to, Louise Melling cited the U.S. Conference of Catholic Bishops, which receives government funds to assist unaccompanied immigrant minors while refusing to provide them with access to abortion and contraception. Melling said this was “discrimination.”
Two representatives of the bishops’ conference — Archbishops William E. Lori of Baltimore and Salvatore J. Cordileone of San Francisco — recently declared USCCB’s strong support for proposed legislation called the First Amendment Defense Act. The bill, introduced by Rep. Raul Labrador (R-Idaho) and Sen. Mike Lee (R-Utah), would bar the federal government from discriminating against individuals and groups that reject same-sex marriage on religious grounds.
The First Amendment Defense Act has received little attention up to now. In the wake of the Supreme Court’s decision in Obergefell, that may change — but don’t count on it.
Russell Shaw is an OSV contributing editor.