Can Academic Freedom in Faith-Based Colleges and Universities Survive during the Era of Obergefell?

By Russo, Charles J. | Ave Maria Law Review, Fall 2016 | Go to article overview

Can Academic Freedom in Faith-Based Colleges and Universities Survive during the Era of Obergefell?


Russo, Charles J., Ave Maria Law Review


Introduction

On August 15, 1990, Saint Pope John Paul II promulgated Ex Corde Ecclesiae ("Ex Corde"), (1) literally, "From the Heart of the Church," an apostolic constitution about Roman Catholic colleges and universities. By definition, apostolic constitutions address important matters concerning the universal Church. (2) Ex Corde created a tempest in a teapot for academicians by requiring Roman Catholics who serve on faculties in theology, religious studies, and/or related departments in Catholic institutions of higher education to obtain a Mandatum, or mandate, from their local bishops, essentially a license certifying the faithfulness of their teaching and writing in terms of how they present the magisterial position of the Church. (3)

The strident opposition of Roman Catholic theologians and others (4) who feared that Ex Corde would have limited their rights to academic freedom, coupled with mostly half-hearted enforcement efforts by local bishops, essentially rendered Ex Corde a dead letter in the United States. (5) In reality, though, Ex Corde enhances academic freedom in its goal of pursuit of the truth. (6) Still, the perceived threat Ex Corde posed to academic freedom did not amount to much. Twenty-five years after the promulgation of Ex Corde, a genuinely lethal threat to academic--as well as religious (7)--freedom to theologians and more broadly to all in higher education, especially those employed in faith-based institutions, as well as all believers, looms large on the academic horizon. The Supreme Court's exercise of raw judicial overreaching in Obergefell v. Hodges ("Obergefell"), (8) raises doubts about whether the academic freedom rights of faculty members and their religiously affiliated colleges and universities can survive governmental interference if they remain true to their beliefs in viewing marriage as a permanent relationship between one man and one woman. (9)

In Obergefell, a five-to-four judgment authored by Justice Anthony Kennedy, (10) the Supreme Court discovered a heretofore unknown right to substantive due process in the Fourteenth Amendment, (11) thereby imposing same-sex unions throughout the United States. The Court reached this outcome absent evidence that imposing same-sex unions was supported by the history or language of the Fourteenth Amendment coupled with the fact that the Justices ignored the democratic process. In fact, a bare majority of Justices imposed its will on the Nation by ignoring the will of voters in thirty-two of the thirty-five states (12) who, when afforded the chance to reframe marriage, chose to retain its definition as being between one man and one woman.

Described as a "judicial Putsch" (13) in Justice Scalia's acerbic dissent, Obergefell was decided on the thin reed of dignity for gays and lesbians that Justice Kennedy divined in the Fourteenth Amendment pursuant to the long discredited Lochner doctrine. (14) Under Lochner, the Supreme Court invalidated almost two hundred laws as violating individual liberty before reversing its course of "converting personal preferences into constitutional mandates." (15)

Of course, there is no question, gay and lesbian couples should be able to continue to exercise their rights to live freely whether "to cohabitate and raise their children in peace[,]" (16) visit one another in hospitals, inherit property, or engage in a myriad of other activities available to Americans. Even so, the implementation of Obergefell presents grave concern over its potential impact on individual faculty members and their faith-based institutions if they disagree with the Court's diktat by continuing to teach religious truths grounded in the Biblical belief in marriage as being between one man and one woman. (17) Aware of this concern, Justice Alito cautioned that Obergefell" will be used to vilify Americans who are unwilling to assent to the new orthodoxy[,] ... by those who are determined to stamp out every vestige of dissent. …

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