In light of Indiana’s passage of an amended state-level version of the RFRA,  Cornerstone  asks this week’s contributors to address the following questions: To what extent should the religious freedom of small business owners protect them from having to act against their consciences? Would such protections open the door to wide-ranging and unjust discrimination against homosexuals, as many fear? What does a cost-benefit analysis reveal about RFRA legislation on the state level? What is at stake in Obergefell v. Hodges , and how does the case relate to state RFRAs? To what extent would a Supreme Court decision in favor of same-sex marriages impede free religious exercise?

By: Carl H. Esbeck

Among the many friends-of-the-court briefs in support of the states in the current same-sex marriage litigation, three especially noteworthy briefs have been filed by religious organizations, public speakers, and scholars concerned about religious liberty and free speech. One brief expresses the joint views of several Protestant churches and the Church of Jesus Christ of Latter-day Saints (LDS), while a second brief was filed by the United States Conference of Catholic Bishops. Both reject the notion that support for man-woman marriage is founded on animus and that the marriage laws can be struck down on that basis. They also warn that elevating sexual orientation to a protected class or same-sex marriage to a fundamental right would impede religious liberty. 

A third brief, filed by religious organizations, public speakers, and scholars concerned about free speech, explains the ways in which those who do not agree with same-sex marriage have been actively silenced or chilled in speaking their views. Given the importance of the freedom of speech to political and religious minorities, this is especially disturbing.

Religious Support for Man-Woman Marriage Is Not Based on Animus

Support for marriage is not founded on bigotry, hatred, or irrational prejudice.

The Protestant/LDS brief explains that their support for man-woman marriage is based on affirming the importance of traditional marriage, combined with centuries of practical experience counseling with and ministering to intact and broken families, single mothers, and functionally fatherless children. Man-woman marriage is central to the history of the church, personal identity, and lived faith of millions of religious Americans.

Similarly, the Catholic bishops’ brief declares that their support for the legal definition of marriage as the union of one man and one woman is based upon love, justice, and concern for the common good. No other institution joins together persons with the natural ability to have children and unite any children of the union with their own mother and father.  Ultimately, the briefs argue that convictions supporting traditional marriage express truths that religious believers and faith communities have held for centuries about the positive value of man-woman marriage. The notion that traditional marriage laws exist for the purpose of harming gays and lesbians is empirically false.

Traditional Marriage Laws Cannot Be Struck Down on the Basis of Animus

Marriage laws cannot be held invalid under the Fourteenth Amendment, and particularly not on the basis of animus.

The definition of marriage distinguishes and specially supports certain forms of conduct that further society’s interests. Both briefs affirm, based on long experience, that a home with a mother and a father is the optimal environment for raising children, an ideal that state law properly encourages and promotes. Given the unique capacity for reproduction of the male-female couple and the unique value of homes with a mother and a father, it is reasonable and just for a state to treat the union of one man and one woman as having a public value that is absent from other intimate sexual relationships.

While the law may not draw classifications based on mere thoughts, beliefs, or inclinations, it can and routinely does distinguish between types of conduct and aids those it finds most in need of protection and support. Confining marriage to man-woman unions does not imply hatred toward the many other intimate arrangements that the law permits but does not endorse. The right to be left alone does not entail a right to public affirmation and support for one’s intimate relationships.

Recognizing a Right to Same-Sex Marriage Would Impede Religious Liberty

A Supreme Court ruling declaring a constitutional right to same-sex marriage would have a disastrous impact on religious liberty.

As the Protestant/LDS brief explains, a decision declaring state marriage laws void for animus would disparage those religious organizations and persons who believe deeply in marriage. Such a decision would stigmatize them as bigots akin to racists. That stigma would impede their full participation in democratic life, as their beliefs concerning marriage, family, and sexuality are placed beyond the constitutional pale. Because religious people cannot renounce their scriptural beliefs, a finding of animus would consign believers to second-class status as citizens whose doctrines about vital aspects of society are deemed presumptively illegitimate. The misattribution of animus would deprive believers and faith communities of their rights to the free exercise of religion, free speech, and democratic participation. Assaults on religious liberty, already under pressure, would intensify.

Likewise, a ruling that sexual orientation is a suspect class entitled to heightened scrutiny would harm religious liberty. Judicial suspicion would quickly follow, directed at laws but also at the religious beliefs and practices of religious organizations and believers themselves. If the Court were to declare sexual orientation a suspect class, claims soon would arise urging that the government has a compelling interest in barring sexual orientation discrimination so as to justify the suppression of religious practices in the private sector concerning employment and charitable services. Because scriptural beliefs regarding marriage, family, and sexuality are central to religious institutions and the religious way of life, recognizing sexual orientation as a suspect class would generate countless new conflicts.

Indeed, a constitutional right to same-sex marriage under any theory would generate tensions with religious freedom and related interests across a wide array of religious, educational, charitable, and cultural fronts. As the Catholic bishops’ brief warns, because marriage so pervades civil and social life, redefining marriage as a matter of constitutional law would soon create extensive church-state conflicts. A Supreme Court ruling imposing same-sex marriage on the country would needlessly embroil the judiciary in conflicts between church and state for generations to come.

Constitutionalizing Same-Sex Marriage Would Weaken Free Speech

Religious freedom aside, the ability to speak freely is fundamental to both personal dignity and the strength of a self-governing republic. Often, speech, religion, and political issues are intertwined. It is commonplace for there to be a moral dimension to issues in the public square. To countenance politically correct moral views but to dismiss less popular moral views as being driven by animus simply because they stem from religious principles is a double standard. Free speech protections are all the more crucial for those willing to dissent from the views most dominant in our culture. 

The Constitution marks a wiser course—that is, leaving the people free to decide the great marriage debate through their state democratic institutions. Allowing all citizens an equal voice in shaping their common destiny is the only way the diverse views of a highly diverse people can be respected on this matter of political, social, and religious impo
rtance. Respect for the principle of equal citizenship and equal participation in the democratic process is the only way that the contemporary controversy over same-sex marriage can be resolved without inflicting harm on millions of religious believers and their institutions.

Carl H. Esbeck is the R.B. Price Professor Emeritus and Isabelle Wade & Paul C. Lyda Professor Emeritus at the University of Missouri School of Law. 

This article first appeared in a longer format in Public Discourse  on April 29, 2015. It was later re-posted on May 4, 2015 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.