by: Gabriella Cate
One thing that makes our democracy so enduring is that each citizen may freely practice any religion. Another is that every American has the right to marry the person they love. However, when these two fundamental rights conflict with one another, problems arise. While it is true each individual has a right to practice their own religion, they cannot impose those convictions on someone else due to the limitations of the First Amendment and the liberties outlined in the Fourteenth Amendment. The conflict between religious freedom and marriage equality can be seen in Loving v. Virginia, where the Supreme Court held that the State of Virginia can not prohibit the marriage of an interracial couple because of religious beliefs. It can also be seen in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, where the Supreme Court ruled that it was unconstitutional for a baker to refuse to make a wedding cake for a same-sex wedding on the basis of his personal religious convictions.
Perhaps the most notable example is Obergefell v. Hodges, which made state laws prohibiting same-sex marriage unconstitutional and officially legalized same-sex marriage in every state. In this case, religious beliefs of the justices elicited a unique dynamic within the Supreme Court that continues to threaten the very right to marriage equality. Justice Clarence Thomas, one of the more conservative justices on the Court, recently released a statement joined by Justice Samuel Alito that discusses the religious implications of Obergefell, foreshadowing a potential overturn of the ruling or revocation of some aspects of the decision. In light of this statement, it is important to analyze the Establishment Clause and the way it can be applied to Obergefell while also examining the consequences of the right to religious freedom and expression.
Obergefell is a landmark case for the LGBTQ+ community. Several same-sex couples sued their respective state agencies in Ohio, Michigan, Kentucky, and Tennessee, claiming that in denying same-sex couples the right to marriage, those state agencies were violating their Fourteenth Amendment rights. The first of these rights include their rights enumerated in the Due Process Clause, which states that a state cannot “deprive any person of life, liberty, or property, without due process of law.” The second right lies in the Equal Protection Clause, which says that a state cannot deny any person “the equal protections of the laws.” While the trial court ruled in favor of the plaintiffs, the U.S. Court of Appeals for the Sixth Circuit overturned the ruling and decided that the actions of the state agencies did not violate the Equal Protection or Due Process Clause because there is no basis for inferring that the state laws had a purpose of imposing a disadvantage on same-sex couples.
The Supreme Court granted certiorari, and a 5–4 majority ruled that precedent protects the right to marriage because of its implications for individual autonomy, intimate association between people, the legal recognition of a family, and its importance to social order. Thus, the Fourteenth Amendment protects this right for same-sex couples since the union of an opposite-sex couple does not vary on the principles of marriage defined by that precedent. Obergefell also touches on religious freedom, arguing that while the First Amendment protects the rights of individuals to practice and adhere to their own religious beliefs, it does not allow a state or a government entity to deny the right to marriage to a same-sex couple on the basis of those beliefs.
Chief Justice John Roberts’ dissent, joined by Justices Thomas, Alito, and Scalia, held that the majority opinion relied on an overly expansive interpretation of the Due Process and Equal Protection clauses. In exercising legislative power through declaring marriage equality as a constitutional right, Chief Justice Roberts said that the Court had overstepped its authority and ruled on a constitutional area that should be left to the states. The Constitution does not explicitly mention same-sex marriage, so the dissenting justices believed it should be up to states to determine the legality of same-sex marriage. Justice Thomas specifically cited religion in his own dissent, affirming that the states should have the authority to decide how to handle the competing interests of same-sex marriage and religious principles.
The repugnant outcome of the dissent would be that many states would impose restrictive marriage laws, forcing same-sex couples to either remain unmarried or go to a different state to be married. Furthermore, the dissenting opinion raises the question of what would happen if a married same-sex couple moved to a state where their marriage is not legally recognized. If left to the states, the concept of same-sex marriage could introduce new legal battles. Because of the Full Faith and Credit Clause, which requires states to enforce and recognize legal contracts from other states, a same-sex marriage would be a legal contract in any state, even if individual states attempted to make it illegal. Therefore, it is imperative the right to marriage equality remains a constitutional right to ensure it is uniformly enforced in every state and not prohibited anywhere on the basis of religion.
The rights established in Obergefell are difficult to separate from religion because, despite the constitutional separation of the church and state, religious beliefs continue to shape interpretations of the law. Therein lies the importance—and the difficulty—of keeping religion and law separate. In permitting freedom of religion for every American, the First Amendment grants people the right to allow their religious convictions to govern their lives. The First Amendment also prohibits the government from forcing any religious ideas on people. Thus, in cases like Fulton v. City of Philadelphia—a pending case which questions the extent to which a religious agency, which is against placing foster children in the homes of same-sex couples, can participate in the government-run foster care system—the Supreme Court is faced with difficult questions about how much freedom of expression Americans can exercise while still maintaining the separation between church and state. The Supreme Court has to decide if it is more important to protect the First Amendment rights of certain religious adherents or protect the Fourteenth Amendment rights of same-sex couples.
The hierarchy of religious and marriage equality rights is an ongoing debate; many originalists hold that since religious freedom is explicitly mentioned in the First Amendment, it is the right to favor when the two conflict. However, those who view the Constitution as a living document argue that it is important to apply the Fourteenth Amendment based on ongoing injustices in our society and to use the greater framework of the Constitution to expand civil rights.
The Establishment Clause of the First Amendment underlies much of the argument that religious rights should be prioritized. The clause prohibits the government from establishing an official religion, showing preference for one religion, or showing preference for religion in general. However, the clause is often used to justify discrimination on the basis of religious beliefs. And while the clause was originally intended for the federal government, all states disestablished official state religions in their own state constitutions, starting with South Carolina in 1790. Once the Fourteenth Amendment was ratified in 1868, the Enforcement Clause enabled Congress to intervene if any state passed a law that contradicted the Constitution, thus binding all states uniformly to disestablishment.
The implications of the Establishment Clause were heavily debated until the ruling in Lemon v. Kurtzman. In the case, citizens of Pennsylvania sued the state on the grounds that a new law giving government funding to religious schools violated the Establishment Clause of the First Amendment. The Supreme Court unanimously held that the statute violated the Establishment Clause and devised a three-part test, appropriately called the Lemon Test, to help later courts in similar cases. To avoid violating the Establishment Clause, the statute must have a “secular legislative purpose,” its “principal and primary affect must be one that neither enhances or inhibits religion,” and it must not “foster an excessive entanglement with religion.” Despite the Court’s widely recognized standards for enforcing the Establishment Clause, some religious agencies and adherents can be exempt from anti-discrimination laws if they believe that the law violates their religious freedom. It can be difficult to determine how to properly balance religious freedom for some and maintaining guaranteed protections for others, and thus, federal laws such as the Religious Freedom Restoration Act, which provides accommodations to religious adherents when religion conflicts with local and state laws, clarify the areas in which such people may be exempt from the Establishment Clause.
Justice Thomas illustrated the tension between religious freedom and marriage equality in his statement on Davis v. Ermold. In 2015, Kim Davis, a county clerk in Kentucky, was sued after she refused to grant marriage licenses to same-sex couples due to her religious convictions. Because of the constitutional rights granted to same-sex couples in Obergefell, Davis was unable to appeal her case to the Supreme Court. Since her rights were not violated by the lawsuit and she was ineligible for qualified immunity, meaning that her religious adherence did not grant her immunity to anti-discrimination laws, she did not have legal grounds for an appeal to the Supreme Court. Despite this fact, Justice Thomas, joined by Justice Alito, wrote that although he agreed with the decision not to hear the case, he sympathized with Davis and reminded same-sex marriage advocates of his disagreement with the Obergefell decision. He said that the Court was prioritizing new, inexplicit Constitutional rights over those explicitly written in the document, and in doing so, “created a problem that only [the Court] can fix.”
He also reiterated the same ideas from his original dissent, writing that Obergefell, “enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.” He then criticized the landmark decision for its “cavalier treatment of religion,” implying that the ruling attempted to invalidate government employees’ religious freedom. Prioritizing marriage equality over the right to religious freedom, he said, set a dangerous precedent for the Court.
In Thomas’ originalist view, one of the reasons that same-sex marriage should not be a constitutional right is that it is not explicitly mentioned in the text of the Constitution. Although he believes the Constitution should be interpreted in the way the Framers wrote it, his view is unrealistic, since modern society is drastically different from society in 1787. In fact, the Framers left many parts of the Constitution intentionally vague to allow future generations to interpret it based on societal changes that were unforeseeable at the time it was created. Nevertheless, Thomas argued that the constitutionality of the right to same-sex marriage was attained undemocratically and that the Court “[forced] that opinion on society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause.” The statement by Justice Thomas raised concerns for many legal scholars and for those whose rights may now be at risk with the confirmation of another conservative originalist justice who strictly adheres to her Catholic faith.
While it seems improbable that the Court would completely overturn Obergefell, the nature of the statement is concerning. Although the Court decided not to grant Kim Davis’ petition for a writ of certiorari, the fact that Justice Thomas wrote a statement sympathetic to Davis essentially signals his willingness—and desire—to overturn or chip away at the ruling. Considering the Court now has a solidly conservative majority, the statement is a cue to bring a new case before the Court to try to overturn Obergefell.
There are many pending cases with that exact goal. The Fulton v. City of Philadelphia case mentioned above, for example, was just argued in front of the Court. Catholic Social Services, a taxpayer-funded foster care agency in Philadephia, refused to place children in the homes of same-sex couples because of the religious beliefs held by the agency. City officials said that they would stop referring children to the agency unless they complied with the city’s anti-discrimination laws, but the agency refused. The question in the case is whether the agency, which receives funding from the government, should be entitled to an exemption from the city’s anti-discrimination laws. If ruled in favor of Catholic Social Services, the case could have detrimental effects on LGBTQ+ rights beyond foster care; it could create circumstances in which government-funded agencies are allowed to more generally discriminate based on religious beliefs. This case, and many others in the lower courts, will be a test of whether the other conservative justices feel as strongly as Thomas about overturning Obergefell.
Many of the people whose marriage rights are threatened worry that, if the case is overturned, they would indefinitely lose their rights. They wonder, for example, what would happen to same-sex couples who are already married. Even if the ruling is not completely overturned, the rights of same-sex couples to equality in marriage could be significantly diluted. According to Alphonso David, the President of the Human Rights Campaign, the dilution of these rights could include consequences for medical decision-making and the allowing of workplace discrimination against members of the LGBT+ community. James Obergefell, one of the plaintiffs in the 2015 case, worries that “overturning or watering down the ruling could lead to public officials refusing to serve interracial couples by citing religious beliefs, or refusing to serve members of other faiths.” Thus, the Court allowing of exceptions to the rights on the basis of religious freedom could pave a dangerous path for legal discrimination in the United States.
Proponents of Obergefell would say that, with each business, hospital, or government official who is allowed to discriminate against same-sex couples because of their religious beliefs, there is a breakdown of civil rights. Despite the tension between the constitutional right to marriage equality and freedom of religion, both are essential to the principles of individual autonomy and expression, so it is important that they are able to coexist. That being said, individual religious beliefs need not impose on the constitutional right to marriage equality. This imposition could not only erode the right to marriage equality, but it could also skew the meaning of the Establishment Clause and erode it into something much different than the Framers intended.
 U.S. Cᴏɴsᴛ. amend. I.
 See Loving v. Virginia, 388 U.S. 1 (1967) (ruling that laws banning interracial marriage violate the 14th Amendment); see also Obergefell v. Hodges, 576 U.S. 644 (2015) (ruling that same-sex marriage is constitutional) [hereinafter Obergefell].
 388 U.S. 1 (1967).
 584 U.S. ___ (2018).
 576 U.S. 644 (2015).
 See Davis v. Ermold, 592 U.S. __ (2020), cert. denied (Statement of Thomas, J.) (“Obergefell enables courts and governments to brand religious adherents who believe that marriage is between one man and one woman as bigots, making their religious liberty concerns that much easier to dismiss.”) [hereinafter Statement of Justice Thomas].
 See Obergefell, 576 U.S.at 645.
 U.S. Cᴏɴsᴛ. amend. XIV, § 1.
 U.S. Cᴏɴsᴛ. amend. XIV, § 1.
 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d 576 U.S. 644 (2015).
 Obergefell, 576 U.S. at 656–60.
 Id. at 676.
 See generally id. at 684–712, (Roberts, C.J., dissenting).
 Id. at 685 (Roberts, C.J., dissenting) (“In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”).
 Id. at 737 (Thomas, J., dissenting) (“Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”).
 Julie Moreau, States across U.S. still cling to outdated gay marriage bans, NBC Nᴇᴡs (Oct. 20, 2020), https://www.nbcnews.com/feature/nbc-out/states-across-u-s-still-cling-outdated-gay-marriage-bans-n1137936.
 U.S Cᴏɴsᴛ. art. IV, § 1.
 U.S. Cᴏɴsᴛ. amend. I
 See generally Everson v. Board of Education of Ewing,330 U.S. 1 (1947).
 Fulton v. City of Philadelphia, 922 F.3d 140 (3rd Cir. 2019), cert. granted, (No. 19-123).
 Grant Darwin, Originalism and Same-Sex Marriage, 16 U. Pa. Journal J.L. & Social Change 237 (2013)
 Laurence H. Tribe, The Constitutional Inevitability of Same-Sex Marriage, 71 Mᴅ. L. Rᴇᴠ. 471 (2012).
 U.S. Cᴏɴsᴛ. amend. I; see also John C. Jeffries Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mɪᴄʜ. L. Rᴇᴠ. 279 (2001).
 Id. at 283.
 Id. at 285.
 S.C. Cᴏɴsᴛ. § 2.
 U.S. Cᴏɴsᴛ. amend. XIV, § 5.
 403 U.S. 602 (1971).
 Lemon v. Kurtzman,403 U.S. 602 (1971).
 See id. at 616, stating, “The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid.”
 Id. at 612–13.
 See id.
 See e.g. McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) and Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000).
 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (1993).
 See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
 Ermold v. Davis, No. 15-46-DLB-EBA, (E.D. Ky. Sept. 15, 2017), aff’d 936 F.3d 429 (6th Cir. 2019).
 936 F.3d 429 (6th Cir. 2019), cert. denied, 592 U.S. __ (2020).
 See id.
 See generally Statement of Justice Thomas, supra note 6.
 See id. at 4.
 Id. at 3.
 Id. at 2.
 See id. at 4 (“By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”).
 See Bruce Ackerman, The Living Constitution, 120 Hᴀʀᴠ. L. Rᴇᴠ. 1737 (2007).
 Statement of Justice Thomas, supra note 6, at 3.
 Kate Sosin, Supreme Court justices set stage to end marriage equality, USA Tᴏᴅᴀʏ (Nov. 3, 2020), https://www.usatoday.com/story/news/politics/elections/2020/10/14/amy-coney-barretts-confirmation-may-mean-end-lgbtq-marriage/5952960002/.
 Fulton v. City of Philadelphia,922 F.3d 140 (3rd Cir. 2019), cert. granted, (No. 19-123).
 See id.
 William Pinzler, ‘Fulton v. Philadelphia’: A Conflict Between Anti-Discrimination Laws and the Free Exercise Clause, Nᴇᴡ Yᴏʀᴋ Lᴀᴡ Jᴏᴜʀɴᴀʟ (Nov. 3, 2020), https://www.law.com/newyorklawjournal/2020/11/03/fulton-v-philadelphia-a-conflict-between-anti-discrimination-laws-and-the-free-exercise-clause/.
 Marcia Coyle, After Landmark LGBT Rights Ruling, Unresolved Questions Await Supreme Court, Nᴇᴡ Yᴏʀᴋ Lᴀᴡ Jᴏᴜʀɴᴀʟ (Nov. 3, 2020), https://www.law.com/nationallawjournal/2020/06/17/after-landmark-lgbt-rights-ruling-unresolved-questions-await-supreme-court/?slreturn=20201016015839.
 See id.
 See Sosin, supra note 46.
 Trudy Ring, Justices Alito, Thomas Call for Overturning of Marriage Equality, Aᴅᴠᴏᴄᴀᴛᴇ (Oct. 16, 2020), https://www.advocate.com/news/2020/10/05/justices-alito-thomas-call-overturning-marriage-equality.