SCOTUS Hearings Silent On Marriage & Religious Liberty

Supreme CourtLast December when I wrote that SCOTUS would be hearing the Proposition 8 and DOMA cases, I quoted a 2005 statement by Chai Feldblum, a lesbian who was an Obama recess appointment to the EEOC and who has now been confirmed by the Senate:

“And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

The Becket Fund for Religious Liberty filed an amicus brief with SCOTUS stating why Redefining Marriage Threatens Religious Liberty. In analyzing the briefs arguing against marriage, Eric Rassbach of The Becket Fund wrote:

To sum up, the question of religious liberty is very much before the Court, despite the parties’ relative silence. The briefs submitted in opposition to our amicus brief contradict each other—some say nothing to see here, move along; others say there are religious liberty problems but they are justified, or that they just need watching. None of them convincingly refute our brief….

Gerard Bradley at SCOTUS Blog writes, however, that religious liberty was not discussed over the two days of hearings (via Matthew Franck, emphasis added):

…[Charles ] Cooper was often interrupted in mid-sentence. But he succeeded in putting on offer (in my words) the following proposition: gendered marriage laws are justified by the fact – the moral reality – that marriage is gendered. Rede- fining marriage as genderless obviously changes the meaning of marriage across our society. The “harm” of doing that is just the harm that it does to people’s opportunities to know, understand, and to participate in marriage as the gendered relationship that it truly is.

Cooper’s invitation to consider the moral reality of marriage had no takers….

The Justices’ striking moral reticence is confirmed, in a way, by the matter which dared not speak its name over these two days: religious liberty. Nothing what- soever was said about it, perhaps because dealing with the certain and certainly grave damage to religious freedom which same-sex marriage portends would only have added to the list of challenging moral questions.

Sometimes getting the meaning of the Constitution right depends upon the getting the answer to some difficult moral question right. This is true less often than liberals characteristically maintain, but more often than conservatives typically admit. This is one of those occasions. The correct answer to the central constitutional question posed in these cases – does equal protection require same-sex marriage? – depends upon the moral truth about marriage.

The oral arguments in Perry and (to a much lesser extent) in Windsor reveal a Court which is indeed standing over a “cliff,” looking into “uncharted waters.”  The missing ingredient is not, however, a body of social science data. It is a strategically central moral judgment which the Court is obviously not going to undertake. Very well, then: let the people, who operate under no similar felt moral constraint, decide the matter for themselves.

It’s astounding that the issue of religious liberty did not come up because there are Christians who have already suffered loss because of their beliefs regarding marriage. Christians are in the political arena, and our concern must be to be faithful to God at the point in the battle to which He has called us—however public or private, however lowly or influential—we are to be good stewards where He has placed us. Remember “All told, the people of 41 states have affirmed the conjugal view of marriage by direct voting or through their representatives.” A vast majority of the people have decided. Don’t be intimidated by the drumbeat of the media. We must continue to stand and look to gain ground. The answers on the importance of marriage, what it is and why its matters to society, are only becoming more concise and irrefutable. We gain ground with our words and with our lives.


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