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Continuing my analysis of the US Supreme Court decision in Obergefell v. Hodges I am going to look at how the decison and the dissenting judgments deal with the implications of the judgment so far as Religious Freedom is concerned
Under the 1st Amendment to the US Constitution the "free exercise" of religion is explicitly protected
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"
The question of a possible conflict between Religious Rights and the newly discovered (invented !) "right" to same-sex marriage was touched on in the majority judgment at P27
"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. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. "
This reassurance is however given short shrift in the dissenting judgments
Roberts P27
"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"
Thomas P14
"Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.....In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid.
Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution
requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty"
Alito P7
"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.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas"
So what are the consequences of the decision for Religous Freedom in the US since, as the dissenters have pointed out, the consequences are far greater than they would be if Same-Sex Marriage had become law through legislative chage rather than by becoming a, hitherto unseen, Constitutional "right". Legislation can be fine tuned and amended in a way that an unwritten "right" cannot be. The judgment creating the "right" to same-sex marriage sets up a conflict of "rights" namely the explicit protection of religious rights set out in the 1st Amendment as against the, fairly unspecified, "right" to same-sex marriage which was "discovered" by the 5 Judges who gave the Obergefell decision. A conflict of rights is a recipe for years of expensive and acrimonious litigation because how can the Courts or legislatures protect the Constitutional rights of a Religious Organisation that actively disagrees with another Constitutional Right?
In Bob Jones University v. United States case 461 U.S. 574 (1983) the US Supreme Court decided that the Ist Amendment did not prevent the US Government removing the religious tax exemptions given to the religious Bob Jones University because the University prohibited Inter-racial dating. It would be therefore be a relatively easy and lawful step for tax exemptions to be similarly removed from religions that did not endorse same-sex relationships; as Chief Justice Roberts in P27 of his dissent pointed out that this possibility has already been considered and accepted by the US Government.
A more sinister, but equally possible, secenario would be the passing of legislation seizing the property of Religious Organisations which disagree with same-sex marriage. This could be legally justified on the basis that the teachings and practices of such religions opposed a "right" enshrined within the US Constitution.
In the 19th Century when the Mormon Church practiced Polygamy the US Congress passed a series of increasingly draconian anti Mormon acts culminating in the 1887 Edmunds-Tucker Act which dissolved the MormonChurch and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this act was endorsed by the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States 136 U.S. 1 (1890). on the basis that the beliefs and practices of the Mormon Church were incompatible with US Law
Could the same thing happen to Religious Organisations which disagree with same-sex marriage ? The legal precedents are there and certainly on the part of same-sex marriage advocates the will is there to attack and if possible destroy religion, in particular Christianity. Religions in the US are therefore facing a dangerous future where their freedom is far from guaranteed.
In the case of Obergefell v. Hodges the US Supreme Court has decided that the 14th Amendment to the US Constitution obliges all 50 States to recognise and licence Same-Sex Marriages.
The decision was by a majority of 5 - 4 so a very close split for such a fundamental decision with implications that go far beyond the issue of Same-Sex marriage itself. The majority decision was given by Justice Kennedy, supported by Ginsberg J, Breyer J, Sotomayor J, and Kagan J. There was a dissenting Judgment given by Chief Justice Roberts, supported by Scalia J and Thomas J, a dissent by Justice Scalia J supported by Thomas J, another by Thomas J supported by Scalia J and last, but very definately not least a dissent by Alito J supported by Scalia J and Thomas J.
There are specific references in all these judgments regarding its implications for Religious Freedom which I will deal with in a separate Blog but from my point of view the dissenting judgments are more intellectually and legally coherent than the warm words, feel good, fatuousness of the majority Judgment so I will concentrate on them.
The dissenting judgment by Thomas J is particularly interesting in that he attacks what is in effect the new notion of "rights" within western society namely a demand that the Government and State "do something" rather than the historical view that "liberty" involves freedom "from" the state "doing something" and he points out that the decision of the Court is actually subversive and undermining of "Liberty" and "freedom" which are (or should be) the cornerstones of the US Constitution.
P7: "In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. .....P8 “[T]he common idea of liberty is merely negative, and is only the absence of restraint.” ....... "Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace" ........P10 "Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers [of the US Constitution] would have recognized."
The Dissent by Scalia J is astonishing in the vehemence of his language excoriating 5 of his colleagues. Like all of the dissenters he makes it clear that his objection is not to Same-Sex Marriage per se, his objection is to Same-Sex marriage being imposed on the entire United States by means of Judicial Decree
P1"The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court".......
He contrasts the difference between a new idea, such as same-sex marriage coming into force as a result of legislative debate rather than through Judicial diktat
P2" Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work." .....P4"But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect".........P6"The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since."
Alito J makes a similar point regarding the fact that the Court is imposing on America a judgment which in a Democracy should be made by the elected representatives of the people.
P6" The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.”
And he points out the long term implications of the way inwhich this decision has been arrived at and the future role of the Supreme Court
P7"Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims."
The Dissent by Chief Justice Roberts, is more restrained, as one might expect but for that reason is even more damning
P2 "Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be"....."Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment." ......
P3 "Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law."
Interestingly Chief Justice Roberts goes on to compare this decision by the Supreme Court to the infamous "Dred Scott" case where the decision of the then, pro-slavery, Supreme Court to extend the rights of slave owners throughout the entire United States including the Free States was a major factor leading to the subsequent American Civil War.
P11 "The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford, 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. ....... Dred Scott’s holding was overruled on the battlefields of
the Civil War and by constitutional amendment after Appomattox,"
The Chief Justice also dealt with the probability that the logic of the decision by the Supreme Court would lead to legal cases demanding Polygamy, Polyandry and Plural Marriage In terms of American legal history this was not a merely theoretical suggestion. The legal definition of Marriage as being between 2 persons was laid down in the United States by the 1878 case of Reynolds v USA 98 U.S. 145 wchich involved the legality of Mormon Polygamy. (See my Blog for 1 August 2013 on Mormon Polygamy and the Law)
P20 "One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one."
And he, like the other dissenters gives a warning regarding the long term implications of the Courts decision
"P22 "The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now"
Or as Scalia puts it more pointedly
P5"A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
to which I, as a British rather than an American citizen, can only say "hear hear"
Following my two earlier Blogs of 24 January 2015 and 23 June 2014 there has been a further case in Malaysia involving the question of whether Christians, and other non Muslims, are entitled to use the word "Allah" as the word signifying "God"
The Malaysian Court of Appeal has issued a judgment in an ongoing case involving CD's seized by Malaysian Customs Officers from the luggage of a Malaysian Christian, Ms Jill Ireland Lawrence Bill. The CD's included ‘Cara Hidup Dalam Kerajaan Allah’ (How to live in God’s Kingdom), ‘Hidup Benar Dalam Kerajaan Allah’ (Right living in God’s Kingdom) and ‘Ibadah Yang Benar Dalam Kerajaan Allah’ (True faith in God’s Kingdom) and therefore all used the word "Allah" to refer to "God" hence their seizure.
The Court of Appeal itself is based on a fairly arcane point of law namely that the Customs Officer involved did not have the necessary legal authority to seize and keep these CD's which were seized in 2008. The decision therefore does seem to keep open the possibility that Government Officials in Malaysia, with the appropriate authority can still seize Christian CD's, Magazines, Bibles etc which refer to "God" as "Allah"
The Malaysian Courts system has therefore not been in any hurry to decide the issues in this case indeed the fundamantal issue of principle is still not decided if indeed it ever will be. The earlier decision in the "Catholic Herald" case does show that the Malaysian Courts accept that the Government of Malaysia can restrict the use of the word "Allah" and that decision is likely to be used against Ms Ireland if she continues with her claim
So far I have not been able to find a transcript of the Judgment so this Blog is based on reports of the case at Lapido Media (an invaluable source of worldwide religious news), Malaysia University Legal News, and The Malaysia Star
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