The Space for Grace and the Space for Neutrality After Obergefell v. Hodges

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Posted in: Constitutional Law

The Supreme Court’s decision in Obergefell v. Hodges has some conservative Christians (alongside some Jewish rabbis) and their beholden politicians like Mike Huckabee, Bobby Jindal, and Ted Cruz, in a tailspin. They won many battles on same-sex marriage (SSM), but then started to lose ground and now have lost the war.

While the sturm and drang is politically captivating, in fact the Constitution has already answered the question of what to do in the two arenas getting the most attention: within houses of worship and when the government acts.

The Constitution on Clergy and Houses of Worship: The Space for Grace

There is no questioning the deep sincerity of those believers who believe that SSM is a sin or an abomination. They have an absolute right to believe anything they choose, per Reynolds v. United States and Cantwell v. Connecticut and their progeny. And, as Justice Kennedy’s majority opinion emphasizes, they have a robust right to speak out against SSM and to continue the debate it. Just as many of the same believers have a robust right to inveigh against contraception, despite the fact they have become the minority view on the issue. The exemptions for clergy to refuse to perform same-sex marriages and houses of worship to host them are not only explicit exemptions in most same-sex marriage statutes, as summarized here, but also required by the Constitution.

The First Amendment’s free speech and free exercise clauses protect them even more enthusiastically as they become the minority view. The government cannot censor their views. As long as they are speaking from their private, personal platforms or the church, synagogue, or mosque’s platform, their views must be permitted in the public square. That principle applies to the full range of beliefs, from Nazi to anti-gay. No city can deny a parade permit based on the views of the marchers or force participants to include views they find odious, per National Socialist Party v. Skokie and Hurley v. Irish-American Gay Group of Boston.

Religious groups have the right per Serbian Orthodox Diocese v. Milivojevich and progeny to control what they believe, intrachurch disputes, and how they choose to govern themselves. Does a group want to expel or shun members who are gay or who participated in same-sex marriage? They have the right to do so to their members. Do they want to shame believers who have violated their rules against SSM? Again, perfectly within their rights.

They can also choose their clergy by their own lights and can’t be sued for discrimination when they make decisions based on race, gender, sexual orientation, or any category per Hosanna-Tabor Evangelical Lutheran Church v. EEOC. In short, there is a large space for the grace of the believers who sincerely and deeply dissent from the Court’s holding.

What they cannot do is own the public square and force out the views that disagree with them. Nor are they immune from criticism for their beliefs. It’s all up for grabs in the United States’ extraordinary, huge, and constantly chatting public square. Thus, Tyler, Texas bishop Joseph Strickland had every right to issue this statement.

My faith tells me that just about everything he says is wrong, but he has a profound and irrefutable right to be wrong.

Government Actions: The Space for Neutrality

The tide turns when the question is whether government workers can treat same-sex couples differently from others. All government workers in the United States are required as a condition of their job to swear an oath to uphold the United States Constitution, per Art. VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States

There is no debate that Marbury v. Madison establishes that the Supreme Court is the final word on the interpretation of the Constitution. Therefore, for those politicians like the Texas Attorney General and others mentioned above who are working assiduously to avoid abiding by Obergefell, think again.

The government is nothing other than its employees, from President to marriage license clerk, and the government may not distinguish between believers. Rather, under the Establishment Clause, the government must be neutral as to religion, per Rosenberger v. Trustees of the University of Virginia. Nor can the government delegate governing decisions to believers, per Larkin v. Grendel’s Den. The clerk that refuses to issue a marriage license to a same-sex couple should be fired under the Establishment Clause, not protected.

Should the President fire the General who has converted to pacifism and refuses to pull the trigger on the gun when faced with the enemy? Of course. He’s unfit for duty. Should the state fire the doctor who converted to Jehovah’s Witnesses and now will not prescribe blood transfusions to save the life of a patient? Yes. She is unfit for duty. Should the government fire the worker who uses her faith to decide how to hand out marriage licenses? Yes, again unfit for duty.

My advice, in distinction with the hue and cry from the conservative Christian politicians, to the clerk who cannot bear to hand over a marriage license to a same-sex couple: ask for a transfer to other duties. Your faith has made you unfit for your government post. You may have been the most gifted and delightful deliverer of marriage license to heterosexual couples in history but your unwillingness to include these couples who have a constitutional right to get married in your state, now makes you unfit.

Similar questions arise when government funds are used by private nonprofits to manage adoptions or other child care. The government’s money may not be used to treat same-sex couples as second-class citizens when it comes to issues of family, like adoption and child care. The Court could not have made that any clearer without having the issue directly before it. Obergefell did not stop at the wedding ceremony, but rather repeatedly emphasized that the incidents of marriage are a part of the right, including the rearing of children.

These arenas are crystal clear in my view and those politicians and organizations that fight these losing battles are wasting precious time and taxpayer money. The poor, our children, and the elderly should be the beneficiaries of those dollars. But that is just my sincere belief.

  • wheasonjr

    heard a pastor or someone that does marriages in one of the eastern states suggest that all persons that now conduct religious marriages and licensed under the state discontinue and only do these under the church. In many states I would guess that they would not be recognized as a marriage within the state. this is OK in my thinking, the union of two Christians should only be in Gods eyes. Christians may suffer some tax loss but most states have non-marriage unions which is like a contract that give almost everything that you get through a marriage. Most cases the state may not have records of what their people are doing, well maybe that is better in this day and age. If the state or government does not like it there is a phrase in a kids card game. GO FISH!

  • EricWelch

    Praise be to God (and Hobby Lobby)!

    Thanks to the ruling by Texas governor Gregg Abbott:

    County Clerks can ignore the Supreme Court and not issue marriage licenses to same-sex couples if their religious belief says so;

    Public librarians will no longer have to check out the Book of Mormon if it violates their religious belief (the Koran has already been removed from the shelves.);;

    Pharmacists will no longer have to dispense drugs of any kind if it conflicts with their Christian Science beliefs;

    Vegan pizza parlor clerks will not have to sell sausage pizza to anyone as it conflicts with their religious beliefs;

    Protestant clerks will not have to sell rosaries to Catholics;

    Protestant carpenters will not have to work on building mosques;

    PETA members will not have to sell materials to livestock farmers nor issue hunting licenses; nor sell any guns at Walmart;

    Clerks will not have to sell anything resembling a Burka or any material that could be used for one;

    Unitarians will not have to serve anyone.

    The only way to get anything done will be to hire atheists.

  • Revd Dr Hanns Engelhardt

    Suppose there is a gifted doctor who is the only one in a large district who is able to perform a difficult treatment. But she (or he – to be gender neutral) refuses
    to offer another treatment which the doctor next door can easily provide. Would
    you regard her to be unfit for being a doctor at all – at the expense of those
    patients who depend on her special treatment? (I do not talk about the case in
    which a treatment is urgent and no other help available; that may be a case of
    failure to assist a person in danger and punishable by law.) Even a surgeon who
    is bound to refuse treatments reserved to an internist is not unfit to be a
    doctor at all for that reason.

    If a clergy person who has “been the most gifted and delightful (officiant at marriage services) in history” refuses to solemnize the marriage of divorced persons whose former spouses are still living but who of course have “a constitutional right to get married” again, is she (or again he – to be gender neutral) unfit to receive authority to solemnize marriages at all by the secular power? The refused couple has to turn to another clergy person or the clerk of the
    municipality in any case. And where is the difference between that couple and a
    same-sex couple, as regards their constitutional right to get married? (I
    venture the guess that cases of failure to assist a person in danger will be
    rare in this context.)

    Finally, concerning the clerk: wouldn’t it be wiser if the municipality distributed the
    official duties in a way that relieves “the most gifted and delightful deliverer of marriage license to heterosexual couples in history” from a duty which s/he feels to be unbearable and refers those couples to the clerk next door? I cannot imagine that any reasonable couple would feel burdened by that procedure.

  • Guest

    Excellent article!