In the midst of
The Fortnight for [Religious] Freedom (which ends tomorrow) came the Supreme Court's decision on so-called "same sex marriage" which has raised more concerns for religious freedom than even the ACA and its contraception mandate. The dissenting judges and the deciding judges both
addressed the issue. Justice Kennedy said:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines,may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
So don't worry--religious people can still advocate and teach and privately live their religious beliefs about marriage--even though they are bigoted and mistaken. Chief Justice John Roberts notes the problems with Kennedy's emphasis:
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept samesex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. Ante, at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19.
This
post also includes the comments made by Thomas, Alito, and Scalia, noting that Kennedy et al have effectively narrowed the meaning of religious liberty to "advocating" and "teaching" a faith's doctrine on marriage. After two thousand years in the Catholic Church, for example, of consistent teaching that marriage is between one man and one woman, and is as indissoluble as Jesus's love for His Church, that doctrine is now bigoted and "mean", and anyone who upholds it is a mean bigot. To quote Alito:
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
And it is already happening: there is already a
call for ending tax exemptions for churches that do not accept the Supreme Court's new definition of marriage. Dissent will not be tolerated. A newspaper won't allow any letters arguing against so-called "same sex marriage" and then had the temerity to exult at the ruling and say: "And we are all more free as a result." Except for those people not free to express their opinions in the
The Patriot-News, of course, if they defend traditional marriage, because those viewpoints are now considered the same as "racist, sexist or anti-Semitic" comments--if you're not for so-called "same sex marriage", you are against it; if you are for traditional marriage (one man and one woman) you are against so-called "same sex marriage". Either way, you are a mean bigot. The editor was shocked that readers thought he was squelching discussion, even though he was. Somehow he could not express himself clearly: if what he wanted to limit was insulting speech or personal attacks, he did not say that and their policy still does not say that.
The Federal Government of the United States of America, through the Supreme Court and with the support of the President of the United States (who hopes others will evolve as he has), has issued new acts of Uniformity and Supremacy.
As Father Robert Barron
reminds us, we've been here before:
In the earliest centuries of the Church’s life, thousands—including Peter, Paul, Agnes, Cecelia, Clement, Felicity, Perpetua, Sebastian, Lawrence, and Cyprian—were brutally put to death by officials of the Roman Empire. In the fourth century, St. Ambrose was opposed by the emperor Theodosius; in the eleventh century, Pope Gregory VII locked horns with the Holy Roman Emperor Henry IV; in the nineteenth century, Bismarck waged a Kulturkampf against the Catholic Church in Germany, and in the twentieth century, more martyrs gave their lives for the faith than in all the previous centuries combined.
And George Weigel
reminds us of the Catholic recusants of England--who would not swear to the religious doctrine proclaimed and enforced by Elizabeth I and her Parliaments:
In sum, we are already in new penal times, with the penalties in question being cultural reprobation (through public shaming and bullying) as well as legal sanction. The latter is going to intensify after Obergefell v. Hodges, and so, almost certainly, will the former. The cultural forces that believe themselves vindicated by Obergefell may take a few days to celebrate; but magnanimity in argument has not been their strong suit to date, and there is little reason to think that magnanimity in victory is on their future agenda. So what are today’s recusant Catholics (and other recusants) to do?
Weigel cites St. Edmund Campion as an example:
A healthy dose of Campion’s wit and intelligence will serve recusant Catholics and other recusant Americans well in a post-Obergefell United States. For the argument over marriage was lost in the culture before it was lost in the law. And therefore the only answer to this new moment of irrationality, and the various forms of persecution that will be part of it, is to convert the culture, calling it back to its Biblical and philosophical roots — and doing so by displaying, as Campion did, the nobility of lives lived in solidarity with others, speaking the truth persuasively and with wit out of concern for their happiness and salvation. It won’t be the rack and the Tyburn Tree, this time around. But legal pressure, ridicule, bullying, social ostracism, and professional disadvantage are going to be as likely after Obergefell as they were ubiquitous before.
And then he recalls Blessed John Henry Newman:
Some 300 years after Campion, and 44 years after Catholic emancipation, another saintly English scholar, John Henry Newman, spoke at the opening of a seminary in Olcott, offering this caution to the faculty and students gathered for the dedication ceremonies: "The trials which lie before us are such as would appall and make dizzy such courageous hearts as St. Athanasius, St. Gregory I, or St. Gregory VII. And they would confess that, dark as the prospect of their own day was to them severally, ours has a darkness different in kind from any that has been before it." Why? Because the new “darkness,” grounded in a religious indifference that would inevitably turn into anti-religious hostility, would be one in which Catholics would once again be “regarded as . . . the enemies . . . of civil liberty and of national progress.”
To bring the warning even more up-to-date, Pope Benedict XVI
referred to Tyburn Tree during the vigil before John Henry Newman's beatification in September 2010:
Newman’s life also teaches us that passion for the truth, intellectual honesty and genuine conversion are costly. The truth that sets us free cannot be kept to ourselves; it calls for testimony, it begs to be heard, and in the end its convincing power comes from itself and not from the human eloquence or arguments in which it may be couched. Not far from here, at Tyburn, great numbers of our brothers and sisters died for the faith; the witness of their fidelity to the end was ever more powerful than the inspired words that so many of them spoke before surrendering everything to the Lord. In our own time, the price to be paid for fidelity to the Gospel is no longer being hanged, drawn and quartered but it often involves being dismissed out of hand, ridiculed or parodied. And yet, the Church cannot withdraw from the task of proclaiming Christ and his Gospel as saving truth, the source of our ultimate happiness as individuals and as the foundation of a just and humane society.
The recusant martyrs of England, whom I have been highlighting during this Fortnight for Freedom really suffered--as did those who did everything but suffer execution through fines, imprisonment, and exile, thwarted hopes and contributions to their native culture. Some of the martyrs were brutally tortured, racked, chained, pressed to death, flogged, and hung, drawn, and quartered. We have seen nothing yet approaching their sufferings here.
