From Loving to #LoveWins

Marriage Equality and Religion-Based Discrimination
By Gregory Lipper
Jun 28, 2015

The more things change, the more they stay the same. Certain religious traditions have long been invoked to justify discrimination against “non-traditional” couples. Almost fifty years ago, in Loving v. Virginia, the Supreme Court rejected arguments based on religious tradition and struck down a ban on marriage between people of different races. On Friday, in Obergefell v. Hodges, the Supreme Court rejected arguments based on religious tradition and struck down a ban on marriage between people of the same sex.

For those who think that allowing same-sex couples to marry raises unique concerns about religious liberty, the arguments made in favor of banning interracial marriage may be surprising. The trial judge in the Lovingcase left no doubt about what motivated the racist ban:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

Needless to say, that ruling and reasoning have not aged well. In its 1967 decision in Loving, the Supreme Court held that religious tradition could not override the Equal Protection Clause and the fundamental right to marriage: state bans on interracial marriage were unconstitutional.

Lovingwas on the Supreme Court’s mind in Obergefell. The “abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause,” said the Court. That connection between marriage and liberty meant that same-sex couples could not be excluded either. Whether or not their marriages were sufficiently “traditional”—as a matter of religion, or otherwise—was no more important than it was in Loving.

As was true after Loving, however, the Court’s decision in Obergefell v. Hodges will not end attempts to use religion to justify discrimination. Three of the four dissenting opinions in Friday’s case alluded to ongoing battles over religiously motivated discrimination against same-sex couples. The Chief Justice warned that “[h]ard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage.” Justice Thomas predicted that equality and religious liberty “will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.” And Justice Alito complained that those who oppose marriage equality “will risk being labeled as bigots and treated as such by governments, employers, and schools.”

There is a lot to unpack in those dissents, but a few things are clear.

First, there is no question that people and organizations have every right to speak out against marriage equality. As the majority opinion explained, “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Marriage-equality opponents across the country—from the Westboro Baptist Church on down—are protected by the right to free speech. As the Supreme Court held in Snyder v. Phelps, even the most offensive and hurtful speech “cannot be restricted simply because it is upsetting or arouses contempt.” Both proponents and opponents of marriage equality retain that vital protection.

Second, there is the issue of marriage ceremonies. Despite some extravagant claims, the government cannot force clergy to perform marriage ceremonies of any kind. Clergy who oppose marriage between people of different races have not been forced to perform marriage ceremonies involving people of different races; clergy who oppose marriage between people of the same sex will not be forced to perform marriage ceremonies involving people of the same sex. Even high-profile opponents of marriage equality, such as the president of the Southern Baptist Theological Seminary, admit as much. For that, they can thank the separation of church and state.

Then there is the more controversial question, unanswered by Obergefell: whether businesses whose owners oppose marriage equality may withhold services from or otherwise discriminate against same-sex couples. Even before the Supreme Court’s decision, some wedding photographers, florists, bakers, t-shirt makers, DJs, and even pizzerias have insisted that they may refuse to provide service to same-sex couples. In states that prohibit public accommodations from discriminating on the basis of sexual orientation, several businesses accused of such discrimination have raised defenses based on the free exercise of religion. Most of these cases are still working their way through the courts, and the dissenters in Obergefellclearly had them in mind.

Here again, the experience of interracial marriage is important. Loving-era businesses didn’t get to violate the Civil Rights Act and deny service to interracial couples, even if their owners’ objections were religious. That lesson was learned by Maurice Bessinger, the owner of a barbeque chain called Piggie Park, which was sued under the Civil Rights Act for banning African-Americans from his restaurant. Bessinger argued that “his religious beliefs compel him to oppose any integration of the races whatever.” His argument didn’t work, and the Supreme Court—just a year after Lovingheld unanimously that Piggie Park should pay the other side’s attorneys fees because the restaurant’s defenses were “patently frivolous.” Few today would disagree.

As the Court in Obergefell explained, same-sex couples came to court to “ask for equal dignity in the eyes of the law.” No less than for interracial couples, equal dignity also entitles same-sex couples to protections against discrimination by businesses—even if that discrimination results from sincere religious beliefs.