It takes time for the culture and political system to assimilate a landmark Supreme Court decision. In the two months since the court declared a constitutional right to same-sex marriage in Obergefell v. Hodges, some opponents of gay marriage have gone into a panic, declaring the End of Religious Freedom in America. That reaction is both overwrought and premature. The fact is that we don't yet know how the law will adjust to the new constitutional order of things — though two decisions announced this week give us some hints about where the debate may be headed.
On Monday, the Supreme Court refused to allow a Kentucky county clerk named Kim Davis to deny marriage licenses to same-sex couples on the grounds that doing so violates her deeply held religious beliefs. (Actually, in an interesting twist, Davis had stopped issuing licenses to all couples, gay or straight.) A stay that had been in effect until Monday pending Davis' appeal of a federal court ruling against her has therefore been allowed to expire, requiring her to begin issuing marriage licenses immediately — despite the fact that, according to her lawyer, "this searing act of validation [of same-sex marriage] would forever echo in her conscience." (As of midday Tuesday, she was openly defying the court by refusing, "under God's authority," to issue the licenses.)
I've defended the freedom of colleges affiliated with conservative churches to discriminate on the basis of sexual orientation, and the right of traditional believers who own businesses to refuse to serve those who wish to hire them to cater same-sex weddings. I sided with Indiana’s Religious Freedom Restoration Act against its critics, and I wrote in favor of the Supreme Court's Hobby Lobby decision that permitted certain corporations exemptions from some provisions of the Affordable Care Act’s contraception mandate.
But the Kentucky case goes too far — as the Supreme Court appears to recognize. Same-sex marriage is now the law of the land. A county clerk works for the state. She doesn't have a right to her job. If her conscience forbids her from complying with new requirements of that job, she can resign and find other work. She certainly can't appeal to God over the heads of the country's political institutions and expect to get away with it.
The contrast with the Hobby Lobby decision is instructive. The ACA mandates that private businesses effectively act as an arm of the state, providing employees with federally mandated health insurance covering specific services and benefits. The plaintiffs in the case contested, for religious reasons, being forced to provide their employees with insurance that makes freely available forms of contraception that the plaintiffs consider to be abortifacients.
The Supreme Court sided with the plaintiffs, granting them an exemption from the ACA in this one area. At the time of the decision, a lion's share of the commentary focused on the fact that it applied only to "closely held" corporations (as opposed to businesses that are publicly traded and therefore owned by large numbers of stockholders whose religious convictions would be impossible to determine and would almost certainly not cohere in any consistent way).
But equally significant was the court's implied recognition that the mandate constitutes an act of coercion by forcing a private business to provide what is, in effect, a public service. Unlike a county clerk, whose job, by definition, is to act as an executor of the law (whatever it happens to be), the owners of a business operate in the private sphere, overseen by government regulations, but not normally treated as a direct arm of the state, compelled to provide benefits that offend the owners' religious faith.
Is the United States a fundamentally public entity that can, at will, deputize citizens to do its bidding, turning them into de facto functionaries of the bureaucratic state? If so, then the distinction between private and public is meaningless and we're all, in effect, county clerks who must follow, apply, and impose the rules without exception, even when doing so violates our deepest spiritual convictions.
The Hobby Lobby decision, combined with Monday's refusal to extend the stay in the Kentucky case, points toward a fairer and more nuanced position on religious freedom — one that upholds a sphere of protection for the religious convictions of private individuals and entities while also recognizing that those protections do not extend to actual employees of the state.
Things get more complicated in the second decision announced on Monday.
According to Judge Richard J. Leon of the United States District Court for the District of Columbia, exemptions to the ACA's contraception mandate cannot be limited to religious groups and their affiliates. They must also apply to any group that upholds "a moral philosophy about the sanctity of life." Addressing the Department of Health and Human Services, one of the agencies sued by the secular pro-life organization March for Life, Judge Leon noted that "HHS may be correct that this objection [to abortifacients] is common among religiously affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not."
Sounds sensible, right? After all, don't we allow conscientious objectors to avoid military service whether or not their objection has a religious or secular foundation? For that matter, doesn't it seem arbitrary to say that religion is the only basis on which people and organizations can reject same-sex marriage and claim an exemption from anti-discrimination laws that protect homosexual rights? What about someone who opposes gay marriage by appealing to arguments rooted in secular natural law theory? Should their objections carry less legal weight than those based on religion? Why?
I know of no good answer to these questions, but I do know that they are going to be asked more and more often over the coming months and years — and with very uncertain consequences.
The constitutional framers listed religious freedom as the very first right protected in the Bill of Rights in large part because they believed that religion is special. It's the cultural font and metaphysical foundation of moral virtue, they presumed, and moral virtue is a crucially important precondition of republican government. We, for the most part, presume neither.
Most Americans are religious in one way or another, but there are also lots (and growing numbers) of secular people running around, and there's not a whole lot of difference in how the different groups behave — as public citizens or private actors. And everyone, on both sides of the religious-secular divide, has deeply held convictions. Why do only the religious convictions deserve protection?
Perhaps they don't. But if religion isn't special, then we arguably have a bigger problem. Allowing private citizens to claim an exemption from laws by appealing to free-floating beliefs unmoored from authoritative institutions or traditions obviously opens the door to legal anarchy. Are you a libertarian unwaveringly convinced that the income tax is an assault on your natural liberty? Claim an exemption from the Internal Revenue Code. Passionately committed to opening a brothel employing hundreds of prostitutes serving thousands of clients? Claim an exemption from laws banning prostitution. Eager to express your personal freedom by selling heroin openly from a storefront on Bleecker Street? Claim an exemption from local, state, and federal drug laws.
And so on.
Personal preferences can't be used by individuals or groups to claim exemption from general laws. That much is clear. If we are going to permit any exemptions, we must be able to distinguish between mere preferences and objections of a deeper kind — ones that the state (or the courts) should recognize and respect. But on what basis is our pluralistic, publicly secular society to make such a distinction? What separates a group that thinks incomes taxes are unjust from a group that objects to abortifacient birth control on secular grounds from a group that objects to the same thing because the Catholic catechism declares it morally illicit?
When it comes to religious freedom, these are interesting times.