Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming
53 Pages Posted: 25 Sep 2015
Date Written: September 21, 2015
The United States has seen a shocking display of intolerance and repression of religious freedom and conscience in the last year, over a profound dispute as to the meaning of marriage, surrounding the controversy over so-called same-sex marriage (SSM). This conflict is simultaneously profound and yet full of ignorance, and has manifested itself in two areas of American law and politics. I address each as issues in this paper.
Issue I concerns the right of States’ citizens to adhere to a traditional, natural definition of marriage, as inherently the union of a man and a woman, in their States’ laws. In Obergefell v. Hodges, a slim five-four majority of the Supreme Court settled Issue I, at least for now, by imposing a right of SSM on all Fifty States, declaring it to be a fundamental right. Actually, Obergefell lacks solid Constitutional footing under either the Equal Protection or Due Process Clause to support it. Instead, a new right to self-identity (in sexuality), has sprouted into existence, which SCOTUS says calls for still another right, marriage, to vindicate this one.
In Obergefell, the majority trounced upon the rights of States and their citizens to continue to define marriage and its inherent limits for themselves, a view already supported by the same majority (and its chief spokesperson, Justice Kennedy) only two years earlier in the Windsor case. It is a switch reaching the heights of hypocrisy in this Court. SCOTUS also completely failed to address ideas for achieving equality for “same-sex couples” without redefining marriage (i.e., compromise solutions).
I include a short list (top 10) of Justice Kennedy’s and the majority’s worldview errors leading them to this incorrect result. It is a starting outline. In hindsight, Obergefell should prove one of the worst decisions in SCOTUS’ history. Instead of lessening social strife, it will significantly increase it, since the case imposed SSM outside of any democratic process, without specific, scientific, or legal support. Its imposition is really about the substitution of the majority Justices’ moral view for standing State law achieved in a valid voting process. It is not solid jurisprudence.
I have included a section analyzing why adherence to a traditional, inherent view of marriage in the States is not a violation of the Establishment Clause, since this fallacy still has its lingering supporters. Even a “secular” view of marriage is in fact inherently religious, having its own ideological branding.
Issue II concerns the right of religious vendors, specifically in the wedding industry, to abstain from involvement in gay-celebrating events (like weddings), with their wares and services. Said events violate their sincere religious beliefs, and core teachings in their religions, as to the meaning of marriage and non-affirmance of homosexual activity. An incorrect argument raised by many LGBT activists says vendors seeking non-involvement in such events are discriminating against individuals because of their sexual orientation. Shallow assertions like this fail to portray what the issue is really about. It is about the definition of marriage, and not individuals’ sexual orientations. Still more shallow are claims conscientiously objecting vendors are hating bigots. It seems Justice Kennedy has slightly distanced himself from this second idea in Obergefell.
Several internationally known case studies of vendors are presented. The Hobby Lobby case, however, should allow religious vendors to abstain from ceremonies such as same-sex weddings. But this is speculative, given the Court’s current composition.
Appendices include a summary of Indonesia’s law, since this article is originally part of a symposium on religious liberty in Indonesia. Indonesia and much of the international community is not likely to accept SSM. Appendix-3 is a list of cases, laws, and has links to several current stories of specific vendors.
Keywords: same-sex marriage, secularism, religious liberty, weddings, vendors, constitution
JEL Classification: K12, K33, K42, M19
Suggested Citation: Suggested Citation
Talbot, Patrick, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge) (September 21, 2015). Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming . Available at SSRN: https://ssrn.com/abstract=2664987