Part III | Expanded Analysis
Category C | Discrimination
Topic 14 | Same-sex marriage
Opposing same-sex marriage on religious grounds is not unlawful discrimination. Both the dicta in the U.S. Supreme Court case Obergefell, which held that the Fourteenth Amendment requires states to license and recognize same-sex marriages, and the statutory language of the Respect for Marriage Act affirm that objecting to same-sex marriage on religious grounds in not unlawful discrimination. There are good faith moral, religious, and legal reasons for opposing same-sex marriage, and attempting to silence expressions of those stances is counterproductive and often unconstitutional.356
Introduction
The U.S. legal landscape regarding same-sex marriage is marked by two major developments: the U.S. Supreme Court decision in Obergefell v. Hodges (2015)357 and the federal Respect for Marriage Act (2022).358
Obergefell marks the first time the Supreme Court held that the Equal Protection and Due Process Clauses of the U.S. Constitution protect a “fundamental right” to same-sex marriage.359 The legal theory used to justify that holding may be weakened by subsequent holdings, but to date, Obergefell has not been overruled.360
Nevertheless, given these judicial signals, the U.S. Congress passed the Respect for Marriage Act (RFMA). The RFMA repealed the Defense of Marriage Act (1996), which had defined marriage as between “one man and one woman” and prevented federal recognition of same- sex marriage.361 The RFMA creates federal statutory protections for the right to same-sex marriage, apart from judicially recognized constitutional protections. While some religious groups strongly opposed the Act—including the Catholic Church and the Southern Baptist Convention—other religious organizations that do not institutionally support same-sex marriage supported the legislation, including The Church of Jesus Christ of Latter-day Saints.362
Neither Obergefell nor the Respect for Marriage Act makes opposing same-sex marriage unlawful. Rather, both include carefully construed language intended to protect religious conscience, signaling from the highest levels of both the judiciary and the legislature that “constitutional space” exists for those with religious objections to same-sex marriage.
Obergefell v. Hodges (2015)
The majority opinion delivered by Justice Anthony Kennedy in Obergefell contained in dicta key language acknowledging the respectability of religious opposition to same-sex marriage:
"[I]t 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."363
The opinion asserted that the U.S. Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”364 However, it also clearly maintained that religious opposition to same-sex marriage is a respectable position that is not unlawful discrimination.
In two of Obergefell’s four dissents, justices further addressed religious conscience, acknowledging the majority’s nod in dicta to religious liberty but alleging the gesture did not go far enough.
Chief Justice John Roberts, dissenting from the majority on the point of a constitutional right to same-sex marriage, expressed concern for protections of religious conscience:
"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.
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 same- sex 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. 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. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today."365
Chief Justice Roberts also expressed concern that, despite the majority opinion’s nod to religious exercise, much of the opinion’s language portrayed those who oppose same-sex marriage “as bigoted” and that its “assaults on the character of fairminded people will have an effect in society and in court.”366 He reiterated that there are good-faith moral, religious, and even legal reasons for opposing same-sex marriage that fall squarely within the First Amendment’s protections. The Chief Justice concluded that the majority opinion constituted judicial overreach, in forcing states to change their respective definitions of marriage, and that it paved a path for religious freedoms to be challenged.
In a separate dissent, Justice Thomas agreed that the majority opinion amounted to judicial overreach, and he shared similar concerns for religious liberty:
"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.
. . . .
Numerous amici . . . have cautioned the Court that its decision here will 'have unavoidable and wide-ranging implications for religious liberty.' In our society, marriage is not simply a governmental institution; it is a religious institution as well. 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."367
Justice Thomas asserted that the majority opinion failed to acknowledge, and thus threatened, the depth and breadth of constitutional free exercise protections:
"The majority . . . makes only a weak gesture toward religious liberty in a single paragraph. 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.' 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. . . .
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."368
Justice Thomas echoed suspicion of the constitutionality of the majority’s holding—a suspicion common to all the dissenters—and added the important clarification that religious liberty must extend to a broader, more fulsome religious practice, not simply religious belief, advocacy, and teaching.
The constitutional analyses in the Obergefell dissents are similar to the majority view applied in Dobbs v. Jackson Women’s Health Organization,369 wherein the Supreme Court overturned Roe v. Wade and held that “the Constitution does not confer a right to abortion.”370
Likely fearing that the Supreme Court could overturn Obergefell using similar reasoning given the opportunity, the U.S. Congress passed the Respect for Marriage Act in 2022. The Act’s language goes beyond Justice Kennedy’s limited acknowledgement of religious conscience in Obergefell and reflects, instead, the more wholistic view of religious liberty espoused in Chief Justice Roberts’s and Justice Thomas’s Obergefell dissents.
Respect for Marriage Act (2022)
The Respect for Marriage Act (RFMA) requires all U.S. states to recognize marriages that are legal in other states, without regard to sex, race, ethnicity, or national origin.371 In its findings relative to the Act, Congress affirmed that
"[d]iverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect."372
It is noteworthy that the findings do not similarly affirm that “diverse beliefs are due proper respect” regarding race, ethnicity, or national origin.373
Immediately following the provision codifying the right to same-sex marriage into federal law are key provisions protecting religious conscience:
"Sec. 6. No Impact on Religious Liberty and Conscience
(a) IN GENERAL.—Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.
(b) GOODS OR SERVICES.—Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action."374
Section 7 of the Act further establishes that its provisions cannot impact the tax status or rights of individuals and organizations that are already enshrined in law.375 These sections not only address some of the potential free exercise issues Chief Justice Roberts highlighted in his Obergefell dissent, for both organizations and individuals; they also protect religious expression and practice in the public sphere, embodying the more expansive view of religious freedom Justice Thomas espoused in his Obergefell dissent.
Conclusion: Peaceful pluralism requires respect and tolerance
Peaceful pluralism necessary for human flourishing requires mutual respect and tolerance of competing views within the confines of the law. Even the case law and statutory law recognizing the right to same-sex marriage in the United States make clear that opposition to same-sex marriage on religious grounds is not unlawful discrimination in the United States. As Chief Justice John Roberts suggested in his Obergefell dissent, attempting to silence religious opposition to same-sex marriage and characterizing it as bigotry is counterproductive at best and can even be unconstitutional. Such actions degenerate into their own form of bigotry that silences health discourse and seeks control of the conscience of others. Those whose religious conscience dictates such opposition are entitled to the same respect afforded all other law- abiding voices.
References
356. Toolkit Topic 14 (Same-sex marriage) was originally drafted by Connor Hansen, 2023 ICLRS Summer Fellow.
357. Obergefell v. Hodges, 576 U.S. 644 (2015).
358. Respect for Marriage Act, Pub. L. No. 117-228, 136 Stat. 2305 (2022) (codified at 28 U.S.C. § 1738C (2024)).
359. Obergefell, 576 U.S. at 675.
360. Compare Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 290 (2022) (“[W]e emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”), with id. at 330, 323 (Thomas, J., concurring) (“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous.’” (citation omitted)).
361. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).
362. Other religious organizations that do not support same-sex marriage but supported the RFMA included the Seventh-Day Adventist Church, the National Association of Evangelicals (with reservations), and the Union of Orthodox Jewish Congregations. See Kate Chandler, The Debate over the Respect for Marriage Act, CLOSE UP WASHINGTON D.C. (Dec. 7, 2022), https://www.closeup.org/the-debate-over-the-respect-for-marriage-act; Official Statement, Statement on the Signing of the US Respect for Marriage Act, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS (Dec. 13, 2022), https://newsroom.churchofjesuschrist.org/article/respect-for-marriage-act-signing.
363. Obergefell, 576 U.S. at 679–80.
364. Id. at 680.
365. Id. at 686, 711–12 (Roberts, J., with Scalia & Thomas, JJ., dissenting) (internal citations omitted).
366. Id. at 712 (“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 same-sex marriage. 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 ‘demean[n] or stigmatize[e]’ same-sex couples. 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 or 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. These apparent assaults on the character of fairminded people will have an effect, in society and in court. 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.” (internal citations omitted)).
367. Id. at 721, 733–34 (Thomas, J., with Scalia, J., dissenting).
368. Id. at 734.
369. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
370. Id. at 292.
371. Respect for Marriage Act, Pub. L. No. 117-228, §§ 4–5, 136 Stat. 2305, 2305–06 (2022) (codified at 28 U.S.C. § 1738C (2024)).
372. Pub. L. No. 117-228, § 2, 136 Stat. 2305.
373. Id.
374. Pub. L. No. 117-228, § 6, 136 Stat. 2306.
375. Pub. L. No. 117-228, § 7, 136 Stat. 2306–07.