[I]t was disappointing to read a threadbare statement written by Thomas, joined by Alito, that was appended to a unanimous decision of the court not to hear the appeal of Kim Davis, a Kentucky public official who refused to issue marriage licenses because of her personal religious views against same-sex unions.
It was an odd document, not a dissent; just a four-page grumble about matters that may someday be a problem depending on the facts of unknown future cases. The justices might consider woodworking, because, from the looks of this, they don’t have enough to keep them busy. The statement, which carries no legal weight, is essentially a cry from the heart on behalf of Americans whose religious views condemn same-sex marriage. Fair enough: The freedom to hold beliefs different from those of the mainstream is a cherished aspect of American liberty. But the statement crosses into sophistry by suggesting that religious liberties are somehow infringed if they aren’t privileged above the civil law.
Thomas begins by restating dissents from the 2015 ruling that established the right of two consenting adults to enter a civil marriage irrespective of gender. This opinion was, as Justice Antonin Scalia forecast, the logical result of a 2003 holding that social mores, including religious views, cannot justify discrimination against homosexuals in the administration of government.
As he did in 2015, Thomas notes that same-sex marriage is not mentioned in the Constitution; and once again, it is an empty feint toward originalism. Opposite-sex marriage is not mentioned there, either. At the time of the Constitutional Convention, certain devout Americans, called Shakers, condemned all marriage as “whoredom.” Originalism therefore appears to teach that protection of religious freedom (for example, the right of Shakers to condemn marriage) does not extend to imposing one’s beliefs on the unenumerated rights of other citizens.
Thomas acknowledges — in a footnote — that Davis had no legal leg to stand on. She wasn’t in court because her religious faith teaches that same-sex marriage is wrong, or as part of a church that refused to perform same-sex marriages. She was in court because she refused to do her legal duty, as clerk of Rowan County, to issue lawful marriage licenses. . . . . Nothing that transpired in Kentucky violated any of Davis’s rights, which is why Thomas and Alito agreed that her appeal did not merit a hearing.
But they worry that someone, somewhere, someday might lose his or her religious freedom. By establishing equal rights for homosexuals, Thomas wrote, the Supreme Court “enable[d] courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots.” So the problem isn’t law but labeling? Thomas and Alito would prefer that Davis and others like her be called “devout,” rather than bigoted.
One can applaud their civility, I suppose, but not their logic, for this gets the First Amendment entirely backward. By prohibiting establishment of a state religion, the Constitution explicitly bars “courts and governments” from preferring one set of religious views over any other set — or over nonreligious views.
Nor does religious freedom confer immunity from criticism. Religious freedom by its nature implies robust disagreement over strongly held values. Imprecations will be hurled, alas. Names will be called. Devout Christians should appreciate this; indeed, we are called blessed when we’re reviled for the sake of our faith. Furthermore, we’re taught to distinguish between civil and religious authority, and to render due respect to both.
Churches and other religious establishments rightly have certain protections from laws that might compel them to violate their beliefs while conducting their own business. It’s dangerous to confuse that safe zone with a general power to flout the law.
Note: The photo above is from a blogger friend's wedding to his husband which was in Martha Stewart's wedding issue.
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