The historic decision in Obergefell v. Hodges obviously means a great deal for the same-sex couples nationwide who can now enter civil marriages, and for their children. It also leaves open the many significant questions that arisen about effects on the religious liberty of dissenters.
The majority opinion by Justice Kennedy holds that denying civil marriage to same-sex couples violates their fundamental right to civil marriage under the Due Process Clause and their right to equal protection of the laws in the enjoyment of that fundamental right. I believe this holding is correct. Same-sex couples fit within the most accurate description of the current institution of civil marriage—a committed mutual relationship of multi-faceted intimacy (emotional, physical, and sexual) often directed to the raising of children—and the reasons given for excluding them did not come close to justifying the burdens of that exclusion.
Kennedy’s previous opinions protecting gay rights, though correct in their results, have been long on puffy rhetoric and short on analytical clarity. Obergefell has some puff but is clearer than its predecessors. The Court fits the ruling into a string of past decisions holding that substantial restrictions on some people’s ability to marry—including restrictions on prisoners, interracial couples, and so forth—must be justified by strong reasons.
Well before today’s opinion, the debate over same-sex marriage had shifted to religious-liberty disputes, from the wedding photographer to the Catholic adoption agency to (potentially, far down the road) the tax-exempt status of religious organizations. It is right, and perfectly possible, to protect both same-sex couples and the religious organizations and individuals who dissent from same-sex marriage. Indeed, as Douglas Laycock, I, and several other scholars argued in an amicus brief in Obergefell, many of the same principles that support religious liberty--the right to live one's life with integrity, consistent with a fundamental element of one's identity—also support the right of same-sex couples to marry.
The religious-liberty questions were not directly before the Court, so unsurprisingly it didn’t say much about them. What it did say was incomplete, and would be inadequate if it were taken as the template for future cases. But it should not be: there is more to say about, and in favor of, religious-liberty claims.
The majority's explicit passage on religious liberty says that religious organizations and persons "may continue to advocate with utmost, sincere conviction" that same-sex marriage should not be condoned, and that they will receive "proper protection as they seek to teach the principles" of their faith. This suggests strong protection for religious speech, and for actions tied to speech: for example, a religious organization's standards of sexual conduct for employees (like teachers) when that conduct may undermine the group's message.
But the opinion makes no mention of the constitutional right to "exercise" religion: that is, the right to avoid a conflict of conscience in cases not directly involving speech, for example, the adoption agency, or a religious college refusing to extend married-student housing to same-sex couples. Religion is not simply a matter or belief or expression. A life of integrity is lived out in conduct. Proponents of same-sex marriage have correctly argued this about the interest in being able to marry; they should acknowledge the analogous interest on the other side. Rights of religious exercise could rest on various provisions, including the federal Free Exercise Clause (especially for the “internal decision making” of religious organizations), the federal Religious Freedom Restoration Act (limiting the imposition of federal laws), and state constitutional provisions and religious-freedom statutes.
Not all of claims of free-exercise rights can be vindicated. But the omission of “exercise” from the majority’s list of religious protections will doubtless be used to argue that as long as a religious organization can express its beliefs, there is no constitutional limit on regulation of its conduct. For this reason, Chief Justice Roberts, in dissent, called the omission “ominous.” But this short passage should not create the inference that “exercise” is unimportant.
There may also be implicit effects on religious liberty in the language the majority uses in justifying the marriage right. The Court says that the denial by the state not only burdens a fundamental right but also "demeans" and "disparages" gays and lesbians and their children. That could bode ill for religious-freedom protections if it means that the traditional view of marriage is itself demeaning and disparaging. The Court elsewhere tries to express respect for the traditional view, saying that it often reflects “decent and honorable religious or philosophical premises.” But those two passages sit uneasily together.
The key to resolving them is distinguishing the state from the objector. For the state to impose the denial of marriage rights, with its wide-range effects on gay families and for insufficient public reasons, is very different from the traditional organization or believer seeking to live with integrity by avoiding participating in or directly facilitating a marriage. The question is not whether the traditionalist view is demeaning in itself, but whether the imposition of extensive burdens on its basis is demeaning in that it fails give meaningful weight to the lives and interests of same-sex families.
The Court does say it's only the state's action that is demeaning. But it could have made the distinction much more clearly. The distinction will be crucial to the key question going forward, to which all the dissents call attention. Can we find a way to give meaningful protection to both sides on this matter? As Justice Alito remarked, “We will soon see.”
Thomas C. Berg is the James L. Oberstar Professor of Law and Public Policy at University of St. Thomas School of Law in Minneapolis, Minn.
