Utah State Flag
Those religious folks, or at least their organizational hierarchies, want the U.S. Supreme Court to decide whether it is constitutionally forbidden for states to ban same-sex marriage. So do I.
You’ll recall that the court ducked the issue last year, tossing out the federal Defense of Marriage Act but punting on the question of whether state bans violate the equal protection and/or due process clauses of the Fourteenth Amendment. Since then, a bunch of federal district and appeals courts have all (with the exception of one district court in Louisiana) decided that such bans do indeed violate one or both of those clauses. On so weighty an issue, now being litigated wherever SSM is not allowed, the justices need to man up and render judgment.
The Catholics, Southern Baptists, etc. think that the case the court should take is Utah’s, and I do too. Why Utah?
Not, as Mark Wilson asserts over at FindLaw, because Utah is one of those states where the voters rather than the legislature approved the ban, thereby creating the clearest contrast between democratic and judicial decision-making on a fraught political issue. (It was on a preference for the former that the outlying Louisiana judge hung his hat.)
Rather, the religious organizations make clear in their amicus brief that, besides addressing all relevant Fourteenth Amendment issues, the Utah case uniquely addresses the burden placed on religious liberty by SSM. Quoting from a 2012 letter from a coalition of anti-SSM religious leaders, they write:
Judicially redefining marriage powerfully conflicts with religious liberty because, among other reasons, such a dramatic change in the law inevitably will lead to “forcing or pressuring both individuals and religious organizations – throughout their operations, well beyond religious ceremonies – to treat same-sex sexual conduct as the moral equivalent of marital sexual conduct.”…
Utah’s petition provides an opportunity to address whether avoiding religious conflicts and church-state entanglements is a sufficiently weighty reason, alone or combined with other interests, to warrant allowing States to retain the age-old definition of marriage.
If the court did find such avoidance sufficiently weighty, I’ve no doubt that the next legal step would be to ask that all states be forbidden to permit SSM on religious liberty grounds. But the real significance of the brief, it seems to me, is that it represents an acknowledgment that SSM is becoming the law of the land, and that the battle has now moved to the securing of legal exemptions for religious objectors.
Under the circumstances, the Catholics, Southern Baptists, Missouri Synod Lutherans, and especially the Mormons should be aware that the Fourteenth Amendment cuts both ways when it comes to religious liberty. Just this past year, U.S. District Judge Clark Waddoups declared Utah’s anti-polygamy statute to be in violation of the due process and equal protection clauses. By taking the Utah case, the Supreme Court will invite amicus briefs from fundamentalist Mormons who, with good reason, will see a decision declaring state anti-SSM laws unconstitutional as enhancing their freedom to practice their polygamous faith.
In other words, be careful what you wish for.
