BY Denis Riley
On June 26th the U.S. Supreme Court held that the 14th amendment guarantees of due process and equal protection of the laws meant that no state could ban marriages between members of the same sex, just as it had held almost 50 years earlier that no state could ban marriages between individuals of different races. Reaction was fast from those who supported the decision, and fast and furious from those who opposed it. Six weeks will have gone by by the time you read this, but I am willing to bet that the issues I am about to discuss will not have been resolved by that time.
Some of those fast and furious reactions seem pretty much the political equivalent of Shakespeare’s “sound and fury, signifying nothing.” There will not be a Constitutional amendment to restore the right of the states to define marriage (Scott Walker and Ted Cruz), nor an “all-out assault against the religious freedom rights of those Christians who disagree” (Governor Bobby Jindahl of Louisiana). Amendments to the U.S. Constitution are hard to pull off – the Equal Rights Amendment died in the ratification process and there is still no personhood amendment – and so far all the political bluster has been aimed at protecting, not assaulting, the rights of Christians bothered by gay marriage.
But there have been furious responses that require very serious thought.
First, no Supreme Court decision is self-executing. People, especially people with “executive power” in state and local governments have to implement many of these decisions. To the ear of a nearly 72 year old Political Science professor, the words coming out of the mouths of public officials in the immediate aftermath of the gay marriage decision seem to echo those of politicians reacting to the 1954 Supreme Court decision in Brown v. Board of Education. Texas Governor Greg Abbot’s assertion that, “No Texan is required to act contrary to his or her religious beliefs regarding marriage,” was followed quickly by Texas Attorney General Ken Paxton’s assurance to county clerks throughout the state that their religious beliefs could trump the Supreme Court’s decision and that he, his office, and an army of Texas attorneys would be behind them in the decision to refuse to issue marriage licenses to gay couples. Louisiana Parish (county) clerks are refusing to issue licenses and one Alabama judge has refused to issue marriage licenses to any couples in his county. Equal protection at work.
But under the 14th amendment, all states are required to provide equal protection of the laws – along with due process protections – to all of its citizens and the U.S. Supreme Court – which the last time I looked had the authority to interpret those provisions – had declared that issuing marriage licenses to same sex couples was a duty of state and local authorities. I don’t have any idea if what seems to be shaping up as a battle over gay marriage could ever produce anything like the battles over school integration. The South was a great deal more invested in Jim Crow than it is in protecting religious liberties, and Mark Twain was probably right that history doesn’t really repeat itself, but it surely does rhyme. I have no formula for addressing the state-federal confrontation that seems to be looming, but we had better come up with one.
I have a good bit more sympathy for the bakers, the florists, and the musicians, who believe their artistry would somehow be offensive to their God if put in the service of a gay wedding. This would have to be particularly painful for those who believe their artistry to be a gift from their God. Talk about ungrateful. But I sympathize more with the gay men and women simply trying to assert a right they have finally been granted. Besides, the bakers, florists, and musicians are also business people, and once you go into business you are obligated by a combination of law and human decency to treat customers equally. But it is precisely here where this question gets a little complicated.
The U.S. Supreme Court can tell county clerks in Texas that they have to issue a marriage license to a gay couple, but can’t tell a baker that he or she must provide that couple a wedding cake. The 14th amendment due process and equal protection clauses do not apply to private citizens and their actions. Congress, a state legislature, and probably even a city council can tell a baker he or she must provide that cake, but the Supreme Court cannot and has not. The mandate for private businesses to stop discriminating on the basis of race, gender, etc., remember, is embedded in the Civil Rights Act of 1964. No such protection resides in that statute for victims of discrimination based on sexual orientation. Can you imagine this Congress doing that? How about the Texas state legislature?
Finally, there are genuinely religious organizations worried about the impact of the ruling on their ability to preach and practice their faith. The chairman of the religious liberty committee of the U.S. Conference of Catholic Bishops, who also serves as the Archbishop of the Diocese of Baltimore, was particularly fearful about being, “silenced or penalized or losing our tax exemption,” if the Church continues to “operate our ministries and to live our lives according to the truth about marriage.” Again, thinking about this political climate, this Congress and state legislatures of a majority of the states, and even the Supreme Court ruling on the right of the members of the Westboro Baptist Church to protest at military funerals by excoriating gay men and women, I think the Archbishop has little to worry about.
There are however, dozens of specific questions that will have to be litigated. To borrow just one from Chief Justice Roberts, what about a religiously based university that provides housing for married couples and refuses to house a same sex couple?
See you in court. That’s where we balance conflicting rights.
Enough out of me.