Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Judicial Action and Marriage Inequality

Stanley Carlson-Thies


By Stanley Carlson-Thies December 8, 2014 In October, by choosing to let stand the decisions of various federal appeals courts, the US Supreme Court in effect legalized same-sex marriage in eleven additional states, bringing the total (then) to thirty. Advocates of such marriages celebrated while defenders of the historic definition of marriage were puzzled and disappointed by the Court’s inaction. Neither side pointed out that when same-sex marriage arrives by judicial decisions (and non-decisions), it hardly institutes marriage “equality.” Instead, such judicial action creates a legal environment and climate of opinion in which proponents of same-sex marriage triumph over those who hold that marriage is the union of one man and one woman. How so? When the official definition of marriage changes to include same-sex couples along with opposite-sex couples, the government requirement of nondiscrimination (in employment, housing, the provision of services, the renting of wedding facilities, or the placement of children needing adoptive or foster parents) results in requiring all people and organizations to act as if marriage extends to same-sex couples, even though many people and organizations have deep convictions to the contrary. Although these people and organizations desire to remain true to their convictions, they may now find themselves faced with the choice of either abandoning a service to which they have been dedicated for decades (e.g., adoptions) or changing their practices despite what they are convinced is right (e.g., placing kids only with mother-father families). This isn’t marriage equality, but marriage inequality. Those convinced that marriage includes same-sex as well as opposite-sex couples will serve both kinds of couples without any conscience concerns. Those convinced that marriage still is what it has been for millennia will find that they can no longer act in harmony with that conviction but now must, in effect, change their view of marriage. The civic solution to this, although both proponents of same-sex marriage and proponents of opposite-sex marriage are reluctant to admit it and work for it, is to adopt robust religious protections in law at the same time as legalizing same-sex marriage. A true marriage equality law will protect religious persons and institutions from being compelled to celebrate or assist in celebrating a relationship they believe is not a marriage. For example, while the law continues to prohibit establishments from refusing to serve gay customers, it will accommodate the different beliefs about marriage by not requiring a wedding planner to help a same-sex couple with its ceremony and reception. Similarly, there would be no laws to prevent a same-sex couple from adopting a child, but also no obligation for a faith-based adoption agency to place a child with the couple. There is a ready-made template for how states can promote and protect the rights of those who believe in same-sex marriage and those who do not. A blue-ribbon group of constitutional law experts, some of whom are proponents of same-sex marriage and others who are not, have proposed it to various governors and state legislatures. In this memo that they wrote to a committee of the Hawaii legislature, they demonstrate a way to create a respectful public square. To date, no state has adopted all of the needed protections and most states have adopted only a few. Proponents of same-sex marriage, in the main, seem content to impose their views on those committed to historic marriage. Proponents of historic marriage, in the main, fight to keep their definition the only legal one for a whole state, and they often regard the creation of protections to be a strategy for losers. When judges dictate that a state must redefine marriage to include same-sex couples, they need not, and do not, pay attention to the religious freedom consequences and the possible religious protections solutions. They simply rule that same-sex couples may marry just as opposite-sex couples may, without regard for how the state’s nondiscrimination requirements may then force those committed to historic marriage to act against their deeply held convictions. When defenders of historic marriage end up in court charged with violating the law, they can, along with proponents of religious freedom and advocates of fair treatment for everyone, then seek religious freedom protections, and they may win some protection for themselves and others. Far better, though, for legislatures to build robust religious freedom protections right into marriage redefinition laws and not let the courts dictate marriage redefinition. A version of this article appeared in the October 24, 2014, issue of the Institutional Religious Freedom Alliance’s eNews for Faith-Based Organizations. - Stanley Carlson-Thies is Founder of the Institutional Religious Freedom Alliance, a division of the Center for Public Justice.

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