Editor’s Note: This talk was presented at a religious freedom conference this week sponsored by the BYU International Center for Law and Religion Studies.
It is high time that religious liberty ceased to be primarily a legal issue, one to be debated exclusively by lawyers, law professors, and judges. Religious liberty is as much about our culture and how we live together as free and equal citizens as it is about legal theories and lawsuits. And how we live together is not, ultimately, for lawyers, law professors, and judges to decide. That is something that all of us are going to have to figure out.
The question I’ve been asked to address is, “what will be the effect on religious liberty of the Supreme Court’s gay marriage decision?” And I have an absolutely certain answer for you. The answer is that it depends: it depends on how our culture—our society—responds to the decision and how, in turn, the law reacts to those cultural and social responses.
To use a really abused word, our culture and the law are in a “symbiotic” relationship. In fact, if there is one thing that has become abundantly clear from the Supreme Court’s same-sex marriage decision, it is that, when it really counts, constitutional law is as much about culture as it is about the Constitution. Many of us have an image in our minds of a justice system where judges sit in their dusty chambers, dispassionately scrutinizing legal texts in light of objective history, tradition, and precedent, and then, after much study and searching, come to carefully reasoned conclusions that allow them, in the words of the great Chief Justice John Marshall in Marbury v. Madison, to “say what the law is.” And that may well be accurate in the many cases that judges tend not to care very much about personally, such as fights between powerful corporations over patent or contractual rights, or tax disputes, or any of a number of “routine” legal areas that judges deal with.
The Courts Often Follow Cultural Opinion
But when it comes to novel issues of constitutional rights affecting individuals, there is much more going on than just judging the meaning of the law. Constitutional law in these kinds of cases is often—not always, but often—a lagging indicator of elite cultural opinion tempered by the broader American culture. Over time, the legal and cultural elite in our country come to a conclusion about what the Constitution requires in such matters and then judges, who are part of that legal and cultural elite, tend to adopt those views—provided they do not lead to conclusions that are too inconsistent with American culture and expectations.
Hence, although much of the legal and cultural elite had concluded well over a decade ago that same-sex marriage should be a constitutional right, it was not until this year—when at least half the American people seemed to support gay marriage—that a majority of Supreme Court justices felt free enough to issue a decision finding a fundamental right to same-sex marriage.
Again, in these sensitive areas, culture often drives constitutional law as much as the words of the Constitution and legal precedent drive constitutional law.
Conversely, it is also true that constitutional law drives culture. The law is a teacher. Indeed, there is a tendency for people to believe that what the Supreme Court says the Constitution requires is what is, in fact, right and good.
Thus, culture affects law and the law, in turn, affects culture.
Two Paths Religious Freedom May Go
So what does all this have to do with religious liberty in the aftermath of the Supreme Court’s same-sex marriage decision? A lot. I believe there are two very different paths that our culture—and the law—can now go down when it comes to the religious liberty of those who sincerely believe, as a matter of faith and faith-filled reason, that marriage is, and should remain, between a man and a woman.
The first path would be analogous to what happened after Brown v. Board of Education and Loving v. Virginia. It is the path we took as a nation when it comes to race and racism. As you know, after a long struggle that included the Civil War, three amendments to the United States Constitution, and heroic efforts by thousands of civil rights activists and ordinary citizens, in 1954 the United States Supreme Court unanimously held in Brown v. Board of Education that state-sponsored racial segregation violates the Equal Protection Clause of the Fourteenth Amendment. This ruling paved the way for racial integration. Then, in 1967, in the case of Loving v. Virginia, the Supreme Court held, again unanimously, that laws against interracial marriage also violate the Fourteenth Amendment.
As vitally important as these cases were legally, they had a profound effect culturally. Together with laws passed by Congress, they not only made racist actions by government unlawful, but far more profoundly, they also made racist speech, and even racist ideas by individuals, socially and culturally taboo. Yes, the First Amendment still protects the right of racists to spout their hatred from the street corner, but if you do so, you will be a social outcast. In most communities you are likely to be terminated from your employment, if you can find a job in the first place. You certainly won’t have a professional career to speak of. And you can forget about playing any active role in the political or social life of your community.
That, of course, is all well and good. Racism was and is a scourge, and we properly attach severe social consequences to those who engage in it. My point is simply that there is very little real freedom or social space in which to be a racist.
How Religious Freedom will be Restricted
If the Supreme Court’s same-sex marriage decision results in support for traditional marriage being equated culturally and legally with racism, then as a practical matter religious liberty will be severely restricted. Under that model, government itself will come to have powerful justifications for suppressing and marginalizing religious beliefs, speech, and especially actions that challenge the new right to same-sex marriage. Schools will be expected to instruct children in the new marriage ideology and to suppress speech and beliefs that run contrary to it, just as schools do when it comes to racist speech and viewpoints.
The expression of pro traditional marriage viewpoints within the workplace will be seen as harassment that cannot be tolerated, even as pro-gay marriage viewpoints are openly discussed. There will certainly be no right to avoid providing services to activities related to same-sex marriages. And institutions—including churches and religious schools and universities—that have sexual teachings and standards rooted in traditional marriage can expect, eventually, to have their tax-exempt status challenged. Indeed, if support for traditional marriage is equated by our society and culture to racism, then every negative outcome that Gene just warned about—and worse—will become a very real risk.
Following the Path of the Pro-Life People
But there is another path or model. In 1972, in Roe v. Wade, a divided Supreme Court removed the issue of abortion from the democratic process, declaring that abortion is a fundamental right during the first two trimesters of pregnancy. What followed could have been something like the aftermath of the Brown and Loving decisions, where anyone who questioned the right to abortion would be driven out of polite society and marginalized socially and legally. But that didn’t happen. Today it is entirely possible for a strong pro-lifer to be open and frank about his or her beliefs in public, in the workplace, at school, and in the various other areas of life. There may be severe criticism in some quarters and even angry debates, but one does not become a social pariah for being against abortion. Indeed, various laws and court decisions protect beliefs, speech, and even actions that oppose abortion.
If, in the aftermath of the same-sex marriage decision, our nation follows the example set in the wake of Roe v. Wade, then religious liberty will survive. There will be hard times, to be sure, but eventually there will be accommodations for those who dissent from the new gay marriage orthodoxy.
We Cannot Remain Silent
So, for me, a critical question at this juncture is: How is it that opposition to abortion was able to secure a place of respectability in our culture and law? The answer is, no doubt, complex. But assuredly one reason is that religious and other pro-life voices decided that they would not, indeed could not, remain silent. They spoke up. They refused to be intimidated. They organized. They insisted on their rights of free speech. And they learned to make their case with reason, civility, and even love. To be sure, there were extremists within their ranks—those willing to disregard the law and even commit crimes against those with whom they disagreed. They had to be denounced and removed from the movement.
There were missteps and mistakes, course corrections and recalibrations. But, eventually, the pro-life movement found its voice and succeeded in convincing about half the American people of the rightness of its beliefs. Of course, not much has changed legally. The Supreme Court still insists that abortion on demand is a fundamental constitutional right. But regardless of your views on Roe v. Wade, the fact remains that those opposed to abortion can still be full and equal citizens, participating in all walks of life—from school teacher, to businessperson, to lawyer, to President of the United States.
In my view, the effect of the Supreme Court’s same-sex marriage decision on religious liberty will depend, to a great extent, on people like you and me. If supporters of traditional marriage retreat—if they are intimidated into silence—if they give up trying to find the right words and arguments to defend their beliefs—if they do not stand as witnesses and living examples of the goodness of their beliefs—and if people of goodwill do not, at least, stand up for the rights of others to dissent in good faith and yet still be numbered among us as our fellow citizens, neighbors, colleagues, and friends—then the Supreme Court’s gay marriage decision will indeed be a disaster for religious liberty.
But if those who support traditional marriage are examples of what is highest and best about their beliefs—if they, like the pro-lifers, refuse to be silenced—if they find ways to explain and persuade with reason as well as kindness, meekness, and love—and if they cheerfully but resolutely endure the indignities that will be visited on them, and without bitterness ask only for toleration, understanding, and respect for their basic rights as Americans—then I believe that, ultimately, the great goodness and decency of the American people will rise up and our culture and law will carve out and protect enough space so that people of faith who maintain traditional beliefs about marriage, family and sexuality can participate fully in all aspects of American life.
That will not happen all at once. Those who hold such beliefs are assuredly in for some difficult and uncertain times. Sacrifices will have to be made. Carefully chosen lawsuits will have to be filed. We may even lose some friends on Facebook, and perhaps even some real friends. But I am hopeful that, in the end, if we stand firm, both our culture and the law will accord those who believe in traditional marriage the respect and freedom they deserve.