A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable?

7 Pages Posted: 3 Nov 2015

See all articles by Carl H. Esbeck

Carl H. Esbeck

University of Missouri School of Law

Date Written: November 3, 2015


Obergefell v. Hodges did not extend the rigor of the Equal Protection Clause to "sexual orientation" as a protected class. The case is about the right to marry by obtaining a license from the state, not a right to be free of discrimination on the basis of sexual orientation. The Court's rhetoric, however, will boost officials eager to take the next step for sexual equality. Not only did Obergefell speak of gays and lesbians as a class and wrote empathetically about them, but in dicta twice said that being gay or lesbian is an immutable characteristic. Accordingly, it can be expected that a few lower court judges - ones liberally inclined - will declare sexual orientation a "suspect class" under the Equal Protection Clause. True, the Court in Obergefell was intentional in not taking this step. But, from experience, we should assume that a few jurists will be unable to restrain themselves and will take the step not taken in Obergefell.

Are the new marital rights in Obergefell necessarily in conflict with religious liberty? The civil law can protect the right of same-sex couples to marry while at the same time safeguard the right of religious person and organizations not to recognize these marriages. This will entail, not moral agreement or even mutual civility, but a commitment to the principle that neither claimant should enlist the power of the state to get the other to renounce their core beliefs or to act contrary to them.

Gay and lesbian groups, however, insist that reform not stop with respectful treatment by the government. In important private transactions, such as employment, housing, commerce, and education, both religious and gay claimants want not to be judged adversely on account of their core self-identity, religious, in one instance, homosexual, in the other. Our society has responded by enacting laws to regulate these important transactions in the private sector. The statutes, of course, are known as Civil Rights Acts requiring nondiscrimination in regard to certain historically oppressed classes.

We now come to the push to add "sexual orientation" to our nation's venerable civil rights laws. As representative bodies consider doing so, what is to be done when the protection of sexual orientation conflicts with religion freedom? Both should be seen as legitimate rights-claims, and society's task is to balance the two with the aim that both rights be harmonized where possible so that both are substantially realized. This framing avoids the bias that it is the religious claimant who is asking for a special exemption from the prevailing standard of equality that is binding on everyone else. The religious are not asking to be elevated above the common good, and it is prejudice to so presume. The religious claimants are asking only that their claim to liberty be weighed on its merits over against the liberty claim asserted by gays and lesbians.

Keywords: religious liberty, religious freedom, religious exemptions, Obergefell, nondiscrimination, gays and lesbians

Suggested Citation

Esbeck, Carl H., A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable? (November 3, 2015). University of Missouri School of Law Legal Studies Research Paper No. 2015-24, Available at SSRN: https://ssrn.com/abstract=2685378

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

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