Obergefell and the Reconstituting of American Community

by vaughn_admin  //  

July 30, 2016

June 26 marks the first anniversary of Obergefell v. Hodges, in which the Supreme Court decided that the Constitution requires the recognition of same-sex marriage. The decision’s implications remain as uncertain and controversial today as they were one year ago.

By: Steven D. Smith

To say that marriage was merely incidental to the same-sex marriage decision, Obergefell v. Hodges, would be an exaggeration. There were surely people, after all, who sincerely wanted the blessings of marriage to be extended to same-sex couples. In a broader perspective, though, marriage was merely one convenient point of attack in a larger campaign. Consequently, far from calming cultural conflicts, the Court’s decision has instead provoked an intensification of such conflicts.

Since Obergefell, the marginalization of Americans who do not accept the new sexual orthodoxy has accordingly escalated. Some of the marginalization is cultural. In an argument that makes the blaming of liberal Democrats for the atrocities of Stalin and Mao seem plausible by comparison, for example, the New York Times and Anderson Cooper attribute responsibility for the Orlando shootings to supporters of traditional marriage. Some of the marginalization takes more coercive forms. A Wyoming judge who is religiously opposed to same-sex marriage is removed. An otherwise exemplary Atlanta fire chief who expresses a traditional Christian view of homosexual conduct is fired. And so on: Instances proliferate.   

These developments are hardly surprising. We misunderstand such developments if we look at them (1) as discrete controversies that (2) matter only or primarily because of their immediate practical consequences.   

Start with the second of these misconceptions. Religious freedom controversies can have painful practical consequences, to be sure, as the florist or pharmacist who faces crippling sanctions for adhering to her or his religious convictions will readily appreciate. Even so, many of the controversies are contentious mostly for their symbolic significance.   

Thus, older prohibitions on contraception were virtually never enforced; they nonetheless expressed a public norm approving traditional sexual morality. Today, conversely, contraceptives are readily available, and there are various ways in which government can subsidize that availability if it so desires. A federal mandate compelling employers to provide such coverage is important not so much because it allows women to obtain something of which they would otherwise be deprived, but rather because the mandate forcefully expresses a revised public norm consonant with the so-called Sexual Revolution. And of course in states like California, where “domestic partnerships” were virtually the legal equivalent of marriage anyway, people on both sides of the issue cared about same-sex “marriage” largely because of its symbolic importance. The courts said as much.   

To say that the issues matter for their symbolism is not to minimize their significance. On the contrary. As an important study by Benedict Anderson shows, a political community is not an empirical fact but rather an “imagined” artifact: It exists in the minds and imaginations of its citizens. And those imaginings arise around and in response to public symbols. Like a contraception mandate. Like the law and labeling of “marriage.” Public symbols express the character of the community, but, perhaps more importantly, they also help to constitute that character.   

Viewed as constitutive symbol, a decision like Obergefell is of a piece with Lawrence v. Texas, and Roe v. Wade, and Griswold v. Connecticut. Along a different axis, Obergefell is continuous with cases like Employment Division v. Smith, and with the Supreme Court’s recent refusal to review the denial of free exercise protection to a family-owned pharmacy that declined to provide abortifacients that were readily available at numerous nearby drugstores.   

But how are these things all connected? The full story would be long in the telling, but here is a shamelessly abbreviated synopsis. The shaky triumph of Christianity over paganism in the fourth century ratified a cultural and political transformation that, as Egyptologist Jan Assmann explains, “has had a more profound impact on the world we live in today than any political upheaval.”  Important features of the Christian transformation are evident in the American political tradition: Let us notice two such features.   

First, a major difference between paganism and Christianity in late antiquity lay in the realm of sexual morality. For pagans, sexual fulfillment both before and beyond marriage was a necessity—for men anyway. Pagans found the Christian restriction of sex to marriage not merely irksome but unfathomable—without, we might say, any “rational basis.” A similar divide is central to the modern culture wars. Post-sexual revolution norms reflect, as Ferdinand Mount explains, a “Neo-Pagan yearning for a return to the easy, down-to-earth sexual life of the ancient world.” And American law both expresses and ratifies this transformation. Thus, as late as the 1950s, the law in most states at least purported to prohibit adultery, fornication, and homosexual conduct. Conversely, modern decisions from Griswold through Roe through Obergefell communicate the official repudiation of traditional sexual morality as a public norm.   

The Christian legacy is manifest as well in the American approach to religious freedom, with its recognition that there are things we owe to Caesar and other things we owe to God. Over the latter category, Madison famously reasoned, civil society and government simply have no “cognizance” —no jurisdiction. This understanding has been central not only to religious freedom but, more generally, to our conception of our political community as (to quote Lincoln, and the Pledge of Allegiance) “one nation under God.” But that conception is today effectively renounced, even by many proponents of religious accommodation, and most vehemently by the opponents of such accommodation.

In sum, modern developments in the areas both of sexuality and of religious freedom are connected in a sustained campaign to reverse the fourth century transformation—to reconstitute the community by rolling back the Christian or biblical legacy that has been central to the American political tradition. “Progressivism” is in that sense profoundly reactionary. On its face, Obergefell was about marriage, but at a deeper level, given the cultural importance of marriage, the decision was a major symbolic victory for that reactionary campaign.   

And yet such transformations are not accomplished overnight, and surely not at the command of morally and intellectually insubstantial figures like the author of Obergefell. So we can expect the conflicts to persist for a long time to come.

Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego and co-director of the university’s Institute for Law and Religion.

This piece was originally authored on July 11, 2016 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.