The Court & Marriage: Three Views

Article excerpt

Richard W. Garnett

The late-June release of the Supreme Court's more controversial or culturally salient decisions has become a major media event--like the Oscars, or the Election Day tallying of the midnight ballots from Dixville Notch. Refreshing, if archaic, rules prohibiting cameras and live broadcasting from the Court cause tens of thousands to glue themselves to celebrity law-reporters' Twitter feeds and the SCOTUSblog webcast.

That said, and the end-of-session drama notwithstanding, few Court-watchers or constitutional-law experts were actually surprised when, in United States v. Windsor, a narrow majority ruled that Section 3 of the Defense of Marriage Act, which comprehensively defined "marriage" and "spouse" in federal law to exclude same-sex partners, was unconstitutional. Although there were some puzzling and fuzzy "federalism" and "state sovereignty" aspects of Justice Anthony Kennedy's opinion for the majority, the bottom line of the Court's holding was fairly clear and widely expected: a narrow majority of justices agreed that the challenged section of DOMA unconstitutionally deprives some persons of the "equal liberty" protected by the Fifth Amendment. In Hollingsworth v. Perry, the Court let stand a trial-court ruling invalidating California's Proposition 8, which outlawed same-sex marriage.

As it happened, the Court's decisions in Windsor and Perry, were announced in the middle of the second annual "Fortnight for Freedom," during which the U.S. Catholic bishops have urged Catholics and their fellow citizens to focus on the importance of, and the threats to, the fundamental human right to religious freedom. Do the Court's Windsor and Perry decisions, and the recent moves in several state courts and legislatures to include same-sex unions in the legal definition of "marriage," constitute such a threat?

It might seem that they do not, because--as President Barack Obama observed in his statement responding to the rulings--"how religious institutions define and consecrate marriage has always been up to those institutions" and "nothing about [the Court's] decision--which applies only to civil marriages--changes that." It is true that core and unlikely-to-change First Amendment doctrines would almost certainly prevent any attempts by the states or the federal government to direct or limit "how religious institutions define and consecrate marriage" for their own internal, "religious" purposes. Indeed, some have argued--as Paul Griffiths did, for example, in Commonweal ("Legalize Same-Sex Marriage," June 28, 2004)--that both the church's freedom and "Catholic marriage practice" could be helped rather than hurt by the "disentanglement of sacramental marriage from state-sponsored contractual marriage" and, relatedly, by the legal recognition of same-sex marriage.

Griffiths is right to warn Christians against allowing debates about the government's treatment and definition of marriage to distract us from, or absolve us for, the troubling fact that we too often fail, in our "practice," to bear effective witness to what he calls the "seductive beauty" of the traditional understanding of marriage. I worry, though, that--as the editors of Commonweal have observed ("Protecting Religious Freedom," July 29, 2011)--the dangers to religious freedom posed by the legal redefinition of marriage are real and that "disentanglement" is not a stable or feasible response to those dangers.

In an important 2008 volume called Same-Sex Marriage and Religious Liberty: Emerging Conflicts, an ideologically diverse collection of scholars identified carefully the many "potential church-state conflicts" that have been and will be "triggered by redefining legal marriage." Again, these conflicts need not involve direct regulation of sacraments or rituals in order to challenge, threaten, or undermine believers' and communities' religious liberty. Instead, what is likely to happen--what is already happening, in fact--is that these conflicts will erupt and play out not within religious communities themselves but in the sphere of civil society, where they will involve, for example, requirements for professional licensing and accreditation, limits on religiously inspired expression and advocacy regarding marriage in public education and employment, conditions on otherwise generally available public benefits or on cooperation between governments and religious social-welfare agencies, expansions of the wide range of antidiscrimination laws and conscientious objections to those laws' application, and attacks on the charitable and tax-exempt status of religious entities that adhere in their practices and teaching to the traditional view of marriage. …