Saturday, June 27, 2015

The Gay Marriage Issue Today is Religious Freedom

Yesterday’s 5-4 Supreme Court decision in Obergefell v. Hodges upholding gay marriage was absolutely no surprise to anyone who has followed Justice Kennedy’s jurisprudence over the past 20 years. It was ordained. There will literally be dancing in the streets during Gay Pride Parades. The problem is that the right to marry came from 5 Justices rather than through the body politic, the democratic process. I’ve written in favor of gay marriage, but not through the courts. My concern over judicial legislation is that on a social issue as polarizing as gay marriage or abortion it will create a backlash that will poison the political system for decades. Some Republican Presidential candidates are calling for a constitutional amendment to ban gay marriage. That is a non-starter. It will not happen. Nor will a subsequent Supreme Court overturn Obergefell. It is the law of the land, a basic constitutional right. It includes the right to wed and divorce, file joint taxes, and receive survivor benefits. However, the decision does not resolve the religious issue, but will bring it to the fore. Justice Kennedy wrote: “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 central to their lives and faiths.” He said both sides both sides “should engage in an open and searching debate.” Would if that were so. Justice Kennedy’s words recognized the right of speech and teaching, but said nothing about the free exercise, including the practice of one’s beliefs. Will a Catholic Priest be forced to perform a gay wedding? Will the Denver baker have to cater a gay wedding? Justice Ginsburg, as expected voted in the majority. Professor Ginsburg in her earlier life as a law professor criticized Roe v. Wade because the Supreme Court decision took the abortion issue out of the hands of the people. It stopped the “momentum for change, which was building across the country for the right to have an abortion, and currently in favor of gay marriage. Some zealot advocates of gay rights have unfortunately shown no tolerance for opponents. Financial donors to California’s Prop 8 lost their jobs when their names were disclosed. One was Brendan Eich, CEO of Mozilla, who had donated $1,000 to the Prop 8 cause. These zealots will not be satisfied just by winning the right to wed. They will want more. An administrative law judge in Colorado in December 2013 ordered a Denver bakery to serve gay weddings or pay a fine. The owner’s response was to stop baking wedding cakes for anyone. He is no longer discriminating. More recently Memories Pizza in Indiana shut down for several days because of the vitriolic response and threats it received after saying it would serve gays at the pizzeria, but not cater a gay wedding. Over $800,000 was raised in support of memories Pizza, illustrating the prospect of a backlash. The founding family of Chick-fil-A are devoutly religious. A statement by the President against gay marriage triggered a firestorm. Yet, the public support for the company drowned out the critics. Some will argue today that opponents of gay marriage are now engaged in hate speech and are homophobic. Sometime in the near future an attempt will be made to get churches opposed to gay marriage to perform such a ceremony. The denial will be followed by an attempt to strip the churches of their non-profit status. The Churches most at risk are Catholic, Mormon, Southern Baptist, and perhaps some African American Churches. The result will be enactment in many states of religious freedom laws, which will effectively allow merchants and restaurants to discriminate based on their religious principles. Such statutes will also increase the divisiveness on the issue of Gay Marriage. Let’s listen to Rodney King: “Why can’t we all just get along?”

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