The Supreme Court’s latest decisions, to strike down DOMA (The Defense of Marriage Act) and send back to the 9th CC (Circuit Court) the decision on Prop 8 galvanized proponents of gay marriage. Numerous polls have shown that a majority of the nation supports gay marriage. Currently twelve of the state’s fifty states have legalized gay marriage either by initiative (Maine), Judicial ruling (Iowa) or legislative action (New York, Vermont).
The Supreme Court’ decision could really only be considered a partial victory for the movement however. It ensured the Federal Government must recognize gay marriages and give them the benefits heterosexual couples receive. But the decision also left untouched the decisions of 38 other states that either have taken no stance on gay marriage or have banned it in some form. This likely means the next battle over gay marriage will be fought at the state level. And it will test how much the courts’ respect the rights of individuals who do not support gay marriage.
Consider some of these examples brought by Timothy Carney of the Washington Examiner.
1) In 2006, a wedding photographer, Elaine Huguenin, refused to photograph a lesbian couple’s wedding. New Mexico does not recognize gay marriage and a majority oppose it (showing the conservatism of Hispanics on the issue) but the New Mexico Civil Rights Commission does not allow discrimination based on sexual orientation. The couple found another photographer but they brought a complaint before the CRC and she was ordered to pay over $7,000 in a fine. She has been helped by the Alliance Defense Fund and the case will be decided by the Supreme Court next year.
2) In Richmond, WA, Barronelle Stutzman owns Arlene Flowers. A gay man who was a long-time customer of Arlene asked her to arrange flowers for his wedding. Arlene refused based on her religious beliefs. As a result, the state Attorney General, Bob Ferguson, is coming after Stutzman. Ferguson’s reason is simple if not trampling on the 1st Amendment, quote “If Ms. Stutzman sells flowers to heterosexual couples, she must sell them to same-sex couples.
Both of these cases bring up a sticky issue the courts will have to confront on gay marriage. How to balance the 1st Amendment’s Freedom of Religion right with the Equal Protection Clause of the 14th Amendment. Some states that have recently enacted same-sex marriage laws through their legislatures, such as NY state, were pro-active in this regard and gave protections to churches and individuals that object to same-sex marriage. But states like Iowa, where judicial fiat enforced same-sex marriage have given opponents no such protection.
It seems obvious a majority of the court support gay marriage in some fashion. It also does not stretch imagination to say the court’s four liberal Justices have a very narrow view of just how far religious objections go in our society. The Obama administration has promised it will not make churches enforce gay marriages if they choose not to do so but the administration’s actions against universities that have not provided free contraception to their employees does not fill one with hope over this announcement.
It will likely fall to the Supreme Court to limit just how far rights must be stretched for the sake of gay marriage. The President and his administration talk far more about “Freedom of worship” than “Freedom of religion.” The Democratic base also does not seem to care about freedom of religion, especially if their commentary is to be believed.
Now it could be the Supreme Court is swayed by public opinion. Under Robert’s, the Supreme Court has shown itself to be very willing to be moved by popular opinion. The Supreme Court’s rulings have also shown that the conservative majority has been willing to play the long-game. Kennedy gave a warning to opponents of gay marriage when he sided with the four liberal justices on the issue, basically asserting those who oppose it are bigoted.
But what if that opposition has a reason and is grounded in one of the nation’s most fundamental and sacred rights. Opposition to gay marriage does not have to fall into the realm of being bigoted. Even liberal legislatures and publics, like New York state, recognize this fact. The national public also seems to as well. Considering this, the Supreme Court could be moved by public opinion and Kennedy’s next few rulings on gay marriage may more reflect religious liberty. If not, Kennedy, Roberts and the rest of the court could create a social backlash over the issue that could last for decades (see abortion).