Ordained Servant: August–September 2016
Also in this issue
by Carl Trueman
by Timothy J. Geiger
by Stephen J. Tracey
by Joel Carini
by John Milton (1608–1674)
In Obergefell v. Hodges (2015) the Supreme Court recognized a constitutional right of same-sex couples to marry. The decision has raised questions for churches holding the traditional view that God established marriage as a relationship between a man and a woman. My goal in this essay is to highlight shifts in constitutional doctrine that paved the way for the Court’s decision, and to note some of the legal issues biblically-oriented churches and individuals may face as they seek to follow Christ in a culture that views the world through other lenses. My purpose is educational; I do not intend to offer legal advice. I want to provide information about how we’ve gotten to this point in our legal history and highlight some of the possible implications moving forward.
When I consider the church’s relationship to the surrounding culture, I focus on Scripture describing believers as citizens of a heavenly city. Paul says “our citizenship is in heaven” (Phil. 3:20). Peter writes that we live “as sojourners and exiles” among the nations (1 Pet. 2:11–12). The author of Hebrews brings those ideas together, noting that our ancestors in the faith “acknowledged that they were strangers and exiles on the earth” and that God “has prepared for them a city” (Heb. 11:13–16). We are citizens of heaven living as sojourners in this world. In some respects, we’re like Israelites residing in Babylon during the captivity. Just as Daniel and his friends studied the language and literature of the Babylonians, I want us to understand how the Supreme Court reached its decision about same-sex marriage so we can think wisely about the ramifications.
Modern constitutional doctrine concerning regulation of marriage and sexuality derives from two clauses of the post-Civil War Fourteenth Amendment. The Due Process Clause provides that no state can “deprive any person of life, liberty or property, without due process of law.” The Supreme Court has concluded that some liberties protected by the clause—including marriage—are sufficiently important to be deemed “fundamental.” Fundamental liberties are so significant that the government needs an unusually strong justification to interfere with them. This theory of the Due Process Clause has been controversial, raising questions about whether courts should decide which liberties are most important and what methods they should use for identifying such fundamental rights.
The other relevant provision of the Fourteenth Amendment is the Equal Protection Clause, which provides that no state shall deny any person “the equal protection of the laws.” The courts have understood this provision to require an unusually strong justification for certain classifications the government might want to draw. The easiest case is race, since the Fourteenth Amendment was adopted to protect the newly-freed slaves. When government treats people differently based on race, the courts have been very skeptical and have demanded a really persuasive justification. The more difficult question is what other distinctions between people are analogous to race and should be viewed with similar skepticism.
Let us begin with the Supreme Court’s decision in Griswold v. Connecticut (1964). Connecticut had a criminal statute punishing “any person who uses any drug, medicinal article or instrument for the purpose of preventing conception.” Individuals connected with a family planning clinic were fined for counseling married couples about contraceptive use. Justice Douglas’s opinion for the Court found that the statute violated a constitutional “right of privacy” that protected married couples:
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.
In a series of later decisions, the Supreme Court struck down laws deemed to intrude on fundamental marriage rights. For instance, in Loving v. Virginia (1967), the Court invalidated a Virginia law forbidding interracial marriage.
The Court’s understanding of the right of privacy evolved in subsequent cases. Griswold had relied heavily on the importance of the marital relationship, but later cases extended the right in ways that viewed marriage as non-essential. In Eisenstadt v. Baird (1972), for example, the Court rejected a Massachusetts law forbidding contraceptive distribution to unmarried persons. The Court had to explain why Griswold applied in a case that did not involve marriage:
It is true that, in Griswold, the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity, with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
While the Court still talked about a right of “privacy,” notice that it substituted a different meaning for the word. The “privacy” at issue in Griswold was that of a married couple in a particular space—the marital bedroom. In Eisenstadt, “privacy” now meant the ability to make important decisions without government involvement. Eisenstadt was relied upon the following year when the Court recognized a right to abortion in Roe v. Wade (1973).
As the Court expanded the constitutional rights protected by due process and equal protection, people wondered whether the Court would recognize heightened constitutional protection for same-sex relationships. The Court initially resisted such claims. In the first case claiming a constitutional right to same-sex marriage, Baker v. Nelson (1971), the Court summarily concluded that the appeal did not raise a substantial federal question. The Court later decided that states could continue the historical practice of criminalizing sodomy in Bowers v. Hardwick (1986).
The tide began to turn in Romer v. Evans (1996), when the Court struck down a state constitutional amendment that prevented enactment of local laws protecting homosexuals against discrimination. One passage from the majority opinion illuminates the change in the Court’s thinking:
[The amendment’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.
Notice two things about this passage. First, the majority believed the amendment was so broad in its prohibition of anti-discrimination laws that it could only be explained by animus—i.e., animosity—toward homosexuals. While the dissent disagreed with that assessment, it’s important because it draws upon a popular narrative that opposition to legal protection for homosexual rights reflects at base an irrational dislike of homosexuals. The second point worth highlighting is that the Court here views homosexuals as a “class.” The Court is no longer thinking primarily in terms of behaviors that anyone might engage in, but is instead focusing on group characteristics and issues of identity. The focus on homosexuals as a distinct class of people allowed them to be perceived as a kind of minority group.
A particularly significant ruling came in Lawrence v. Texas (2003), when the Court overruled Bowers v. Hardwick and invalidated a Texas sodomy statute. In the years after Lawrence a number of states began to recognize same-sex marriages, or to afford legal recognition under other labels, like “civil unions” or “domestic partnerships.” The effects of those state laws were localized because of a federal statute called the Defense of Marriage Act (DOMA), enacted in 1996 and signed into law by President Clinton. One section of DOMA adopted the traditional definition of marriage for federal law and another provided that a state could deny recognition to a marriage from another state that violated its public policy.
In Windsor v. United States (2012) the Supreme Court invalidated the portion of DOMA dealing with federal law, requiring the federal government to recognize a marriage deemed valid in New York. The decision employed reasoning analogous to Romer:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.
Windsor suggested that a majority of the Court was moving toward recognition of a constitutional right to marry for same-sex couples, a point ultimately reached in Obergefell v. Hodges (2015). The Obergefell Court concluded that refusing to recognize same-sex marriage violates the liberty to marry protected by the Due Process Clause and the equal treatment required by the Equal Protection Clause.
Obergefell was a 5–4 decision, and each dissenting Justice authored a separate opinion. For the most part, the dissenters argued that the Court should leave the issue of recognizing same-sex relationships to resolution by the political process in each state. Chief Justice Roberts predicted that the decision would generate future conflicts in connection with religious organizations that for theological reasons embrace a traditional understanding of marriage:
The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. 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. There is little doubt that these and similar questions will soon be before this Court.
It’s worth spending some time thinking about ways same-sex marriage rights could raise legal questions for traditional religious communities.
One question that has received a fair amount of attention is whether a church or pastor can be legally compelled to perform a same-sex wedding or to admit members married contrary to the beliefs of that religious tradition. This is an issue on which—at least at this point—there seems to be widespread agreement. The Supreme Court has interpreted the Religion Clauses of the First Amendment to prevent government interference with a church’s determination of doctrine, selection of ministers, and internal government and discipline. Most people involved in this issue agree that the Religion Clauses protect a church or pastor against compulsion to violate sincerely held religious beliefs in these contexts.
Considerable protection also exists in this country for freedom of religious speech, though not complete protection. In many situations, those with religious objections to same-sex marriage should be able to voice their opinions without fearing the reaction of the government. Of course, the First Amendment does not protect a person against private reactions. Someone who speaks out on this issue might experience consequences in the workplace or in other non-governmental settings. Even in cases where the First Amendment does apply, there will be difficult cases at the margins. For instance, there may be tough cases concerning free speech rights of government employees.
While there are reasonably strong protections for churches and in some contexts for religious speakers, the law gets a good bit more complicated and less protective when the government regulates conduct. The baseline rule is that the government can regulate religiously-motivated conduct through general laws that do not target religious believers. In Employment Division v. Smith (1990) the Court decided that Oregon could enforce a law against peyote use and did not have to grant an exemption for members of a Native American church to use peyote in a religious ceremony. Based on Smith, the Free Exercise Clause of the First Amendment would not prevent the government from enforcing generally applicable anti-discrimination laws against those who claim compliance would violate their religious beliefs. Even before Smith, in a decision alluded to in Chief Justice Roberts’s Obergefell dissent, the Supreme Court allowed the IRS to revoke the tax-exempt status of a school that prohibited interracial dating on religious grounds. In that case, Bob Jones University v. United States (1983), the Court found that the government had a compelling interest in eradicating racial discrimination that overrode the school’s claims based on free exercise of religion. Under Smith’s no-exemption principle one can easily envision potential legal conflicts arising in areas like employee benefits or provision of services by religious schools, charities or wedding-related businesses.
The Smith decision was very unpopular at the time and resulted in bipartisan federal legislation designed to enhance protection for religious freedom. Under the Religious Freedom Restoration Act (1993) (RFRA), if the federal government substantially burdens a person’s exercise of religion, an exemption must be granted unless the burden is the least restrictive means of furthering a compelling government interest. This was the statute the Supreme Court applied to protect Hobby Lobby and the Little Sisters of the Poor against the Obamacare contraceptive mandate. RFRA passed unanimously in the House and in the Senate by a 97–3 vote. Many states adopted comparable rules through legislation or interpretation of state constitutions.
Some religious freedom advocates hope state RFRAs will protect believers from laws requiring conduct in tension with their religious beliefs. However, after Obergefell, religious freedom principles that were once the subject of bipartisan consensus have now become politically controversial. Further, it is not clear RFRA principles would necessarily shield believers in all contexts. For instance, a Washington state court ruled that RFRA-like principles did not protect a florist who claimed her sincere religious beliefs prevented her from providing flowers for the same-sex wedding of a long-time customer.
I want this essay to be longer on information than advice, but let me close with some New Testament passages that seem relevant as we sort through these issues. First, passages like 1 Corinthians 5 seem to clearly teach that we should interact differently with members of the church than our unchurched neighbors. That should influence how we understand what it means to walk wisely among those who live around us.
Second, it’s worth recalling that the political divisions in Jesus’s day were starker and more dangerous than those we face. We should therefore pay attention to how Jesus navigated treacherous political minefields, such as the question in Luke 20 of whether to pay taxes to Caesar. It’s interesting that Jesus never directly answers the question he is asked. He never utters the sound bite that will justify denouncing him to the Roman authorities, but he also never utters the sound bite that will undermine his credibility with devout Jews. He instead reframes the issue, refusing to let his political adversaries force him into their trap. Jesus teaches us not to be too predictable. We should not allow the secular culture to define the available options, but should think deeply about how we can respond in faithful yet surprising ways that undermine some of the stereotypes driving the culture wars.
 This article is based on an address given at the pre-assembly conference on June 8, 2016, entitled “Marriage, Sexuality, and Faithful Witness,” sponsored by the Committee on Christian Education of the Orthodox Presbyterian Church.
Randy Beck is an elder in the Presbyterian Church in America and a professor in the Justice Thomas O. Marshall Chair of Constitutional Law at the University of Georgia School of Law. Ordained Servant Online, August 2016.
Contact the Editor: Gregory Edward Reynolds
Editorial address: Dr. Gregory Edward Reynolds,
827 Chestnut St.
Manchester, NH 03104-2522
Electronic mail: email@example.com
Ordained Servant: August–September 2016
Also in this issue
by Carl Trueman
by Timothy J. Geiger
by Stephen J. Tracey
by Joel Carini
by John Milton (1608–1674)
© 2023 The Orthodox Presbyterian Church