In Gratuitously Attacking Marriage Equality, Clarence Thomas Accidentally Raised an Important Question About the Scope of Religious Liberty

Posted in: Constitutional Law

Last week, the Supreme Court rejected a petition for review from Kim Davis, a county clerk in Kentucky who refused to issue marriage licenses after the high Court’s 2015 ruling in Obergefell v. Hodges finding that same-sex couples have a constitutional right to marry. Davis was sued by two same-sex couples, and last year the U.S. Court of Appeals for the Sixth Circuit ruled that their lawsuit could proceed. The Supreme Court’s denial of Davis’s petition for review would not ordinarily be newsworthy: the Court rejects many more review applications than it accepts; such rejections set no precedent; and because the Court typically provides no reason for these decisions, they can be based on any number of grounds. For example, the Davis case is interlocutory—that is, it has not yet produced a final judgment. That alone could explain the Court’s decision to reject review.

Yet Davis was a relatively rare newsworthy Supreme Court denial of review for two reasons. First, Davis had previously garnered considerable attention—even an audience with the Pope—for her ostensibly principled stand against marriage equality. Second, although the Court rejected the Davis review petition unanimously, Justice Clarence Thomas, joined by Justice Samuel Alito, wrote a statement explaining that, despite his agreement with the procedural disposition of the case, he was very sympathetic to Davis and remains hostile to the Obergefell decision, from which the two Justices dissented.

The Thomas statement in the Davis case is gratuitous, offensive, and poorly reasoned. Nonetheless, it inadvertently raises an important question that goes beyond the Davis case: Where is the line between religious beliefs—which receive absolute protection—and religious practice—which can be limited in pursuit of countervailing interests?

The Thomas Rant in Davis

Justice Thomas’s statement in the Davis case reads less like the work of a careful jurist and more like a compilation of right-wing talking points. From the start, Justice Thomas demonstrates his lack of seriousness. His first sentence states: “In Obergefell v. Hodges, the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text.”

It is true that the Fourteenth Amendment’s text does not expressly state a right to same-sex marriage. Neither does it state a right to opposite-sex marriage. Nor does it state a right of children to attend schools that are not segregated by race. The text does not even forbid race discrimination of any sort—although Justice Thomas perhaps is unaware of that fact, because he once joined a dissenting opinion by Justice Antonin Scalia falsely claiming that the Fourteenth Amendment “explicitly establishes racial equality as a constitutional value.” In any event, the assertion that general language (of the sort contained in the Fourteenth Amendment) does not cover some particular circumstance because the language is, well, general, displays either a gross misapprehension of how law and language work, disingenuousness, or the powerful grip of ideology.

The brief Thomas statement in Davis repeats the fallacious not-in-the-text criticism of Obergefell, at one point referring to the decision as the “Court’s alteration of the Constitution.” Yet every case finding a previously unrecognized right can be characterized as altering the Constitution. Some examples from decisions that Justice Thomas has joined include the right of corporations to spend money to influence politics, the right of white college applicants to contest race-based affirmative action programs, and, just a few months ago, the right of state criminal defendants to a unanimous jury (in which Justice Thomas wrote a separate opinion offering an idiosyncratic reading of the Fourteenth Amendment to which none of his colleagues subscribed). Rightly or wrongly, each of these and many other rulings “altered the Constitution” just as much as Obergefell did. Justice Thomas’s rhetoric is empty.

The problem is not simply the language of Justice Thomas’s Davis statement but its logic. His primary complaint is that the Court, in recognizing a constitutional right to same-sex marriage in Obergefell, put people who have religious objections in a bind. Davis, he says, was “faced with a choice between her religious beliefs and her job.”

Yet there is nothing special about Obergefell that created that supposed dilemma. Such conflicts arise whenever people hold religious beliefs that conflict with legal obligations. For example, the Court’s 1967 decision in Loving v. Virginia that the Fourteenth Amendment protects a right of interracial marriage would have put county clerks who opposed such marriages on religious grounds in exactly the same bind as Davis. Likewise, a county clerk who—on religious or other grounds—is offended by the message on a patron’s t-shirt must nonetheless provide that patron with the same services offered to others. Justice Thomas takes aim at Obergefell, but his blunderbuss hits the Constitution and the law more broadly.

Indeed, Justice Thomas seems to recognize that his attacks on Obergefell are gratuitous and misguided. He notes in passing that Davis lacks “any statutory protection of her religious beliefs.” Yet that is not the doing of the Obergefell Court or the federal Constitution. It’s a feature of Kentucky law. Kentucky could provide that employees with religious objections to performing some of their duties may assign them to deputy clerks, so long as the public still receives non-discriminatory service.

Alternatively, the Supreme Court itself could overrule its 1990 decision in Employment Division v. Smith, which held that the constitutional right to free exercise of religion does not include a right to religious exceptions from general legal obligations. Justice Thomas describes Smith in a footnote without acknowledging that the Court has on its docket a case that includes, as one of the questions presented, whether to revisit Smith. Doing so would be controversial, of course, but at least it would address the real issue raised by Davis.

Religious Belief and Religious Practice

In addition to the unwarranted attack on Obergefell, the statement by Justice Thomas in Davis also includes an assertion that is odd on its own terms. Justice Thomas characterizes Davis and those like her as people who “refus[e] to alter their religious beliefs in the wake of prevailing orthodoxy.” Yet no one asked Davis to alter her religious beliefs. Rather, the lawsuit against her contends that she must provide services to the public in accordance with their constitutional rights, whatever her religious beliefs.

Suppose that a county clerk believes that Donald Trump is a narcissist, racist authoritarian, and compulsive liar. On the basis of that set of beliefs, may the clerk refuse to issue a driver’s license to a MAGA-hat-wearing applicant who satisfies the legal criteria for a license? No. Does that mean that the clerk has been required to alter her beliefs about the President? Of course not. We frequently distinguish between belief and conduct.

That distinction is especially important with respect to religion. The Court relied on it in Smith, but even if Smith were to be overruled, the distinction between religious beliefs and religious conduct would remain important. Overruling Smith would not mean that religious motivation would provide carte blanche to ignore general laws. Rather, it would mean that the enforcement of a secular law to which a person objects on religious grounds would require the government to come forward with a compelling reason why no exception can be made.

Simple, right? Well, yes and no. Some beliefs are abstract. If Sheila believes on religious grounds that the world was created in six days about six thousand years ago, there are very few opportunities to act on that belief in ways that come into conflict with secular obligations—except perhaps if Sheila is employed as a science teacher or natural history museum docent.

By contrast, some other religious beliefs regard obligations to engage in or refrain from actions that the state might respectively forbid or require. For example, most states forbid female genital mutilation (FGM). Some people believe that FGM is required by their religion. Even in states that do not follow Smith as a matter of state constitutional law—and thus allow religious exceptions to general laws—no one may engage in FGM, because of the harm it inflicts. Thus, whether or not Smith applies, there is no right to practice FGM.

Yet the FGM prohibitions do not require anyone to “alter their religious beliefs.” One may believe that there is a religious obligation to practice FGM, but one may not practice it. In that sense, Justice Thomas’s observation is inapt.

Nonetheless, prohibitions on conduct often affect belief. We like to think of ourselves as rational, as deciding what to do based on what we think, but the process frequently works in reverse. Considerable psychological research shows that we form our beliefs based on our actions. That phenomenon partly explains the role of ritual in inculcating religious beliefs.

It also partly explains why racist religious beliefs are much less common today than they were before the passage of the 1964 Civil Rights Act. In earlier times, religion was frequently invoked to defend slavery and later Jim Crow. The belief that the Bible authorizes slavery or mandates racial segregation was never outlawed and could not be outlawed consistent with the First Amendment. Still, that belief has almost entirely died out because actions based on it have been forbidden.

Accordingly, Justice Thomas is not wrong to think that legal protection for same-sex marriage could affect religious beliefs about same-sex marriage. Were he not so intent on waging the culture war, his statement in the Davis case might have been the occasion for a useful discussion on the subtle relationship between conduct regulation and religious (or other) beliefs. Unfortunately, however, on the Supreme Court as in other areas of our public life, subtlety is in short supply.

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