Can academic freedom in faith-based colleges and universities survive during the era of Obergefell?

• Author: Russo, Charles J.
• Position: Symposium on Obergefell v. Hodges

Introduction

On August 15, 1990, Saint Pope John Paul II promulgated Ex Corde Ecclesiae ("Ex Corde"), (1) literally, "From the Heart of the Church," an apostolic constitution about Roman Catholic colleges and universities. By definition, apostolic constitutions address important matters concerning the universal Church. (2) Ex Corde created a tempest in a teapot for academicians by requiring Roman Catholics who serve on faculties in theology, religious studies, and/or related departments in Catholic institutions of higher education to obtain a Mandatum, or mandate, from their local bishops, essentially a license certifying the faithfulness of their teaching and writing in terms of how they present the magisterial position of the Church. (3)

The strident opposition of Roman Catholic theologians and others (4) who feared that Ex Corde would have limited their rights to academic freedom, coupled with mostly half-hearted enforcement efforts by local bishops, essentially rendered Ex Corde a dead letter in the United States. (5) In reality, though, Ex Corde enhances academic freedom in its goal of pursuit of the truth. (6) Still, the perceived threat Ex Corde posed to academic freedom did not amount to much. Twenty-five years after the promulgation of Ex Corde, a genuinely lethal threat to academic--as well as religious (7)--freedom to theologians and more broadly to all in higher education, especially those employed in faith-based institutions, as well as all believers, looms large on the academic horizon. The Supreme Court's exercise of raw judicial overreaching in Obergefell v. Hodges ("Obergefell"), (8) raises doubts about whether the academic freedom rights of faculty members and their religiously affiliated colleges and universities can survive governmental interference if they remain true to their beliefs in viewing marriage as a permanent relationship between one man and one woman. (9)

In Obergefell, a five-to-four judgment authored by Justice Anthony Kennedy, (10) the Supreme Court discovered a heretofore unknown right to substantive due process in the Fourteenth Amendment, (11) thereby imposing same-sex unions throughout the United States. The Court reached this outcome absent evidence that imposing same-sex unions was supported by the history or language of the Fourteenth Amendment coupled with the fact that the Justices ignored the democratic process. In fact, a bare majority of Justices imposed its will on the Nation by ignoring the will of voters in thirty-two of the thirty-five states (12) who, when afforded the chance to reframe marriage, chose to retain its definition as being between one man and one woman.

Described as a "judicial Putsch" (13) in Justice Scalia's acerbic dissent, Obergefell was decided on the thin reed of dignity for gays and lesbians that Justice Kennedy divined in the Fourteenth Amendment pursuant to the long discredited Lochner doctrine. (14) Under Lochner, the Supreme Court invalidated almost two hundred laws as violating individual liberty before reversing its course of "converting personal preferences into constitutional mandates." (15)

Of course, there is no question, gay and lesbian couples should be able to continue to exercise their rights to live freely whether "to cohabitate and raise their children in peace[,]" (16) visit one another in hospitals, inherit property, or engage in a myriad of other activities available to Americans. Even so, the implementation of Obergefell presents grave concern over its potential impact on individual faculty members and their faith-based institutions if they disagree with the Court's diktat by continuing to teach religious truths grounded in the Biblical belief in marriage as being between one man and one woman. (17) Aware of this concern, Justice Alito cautioned that Obergefell" will be used to vilify Americans who are unwilling to assent to the new orthodoxy[,] ... by those who are determined to stamp out every vestige of dissent." (18)

The outcome in Obergefell has progressives (19) and their allies in Congress anxious to extend their vision of a radically transformed United States, brooking no compromise, granting no quarter to those who believe in marriage as a union between one man and one woman--a position that was all but universally accepted barely a generation ago. Progressives are thus seeking to confer protected status on same-sex unions--ignoring the long cherished right to freedom of religion and accompanying protections--such as the academic freedom to disagree enshrined in the First Amendment. (20) Conversely, in a looming battle of dueling legislative proposals before Congress, defenders of religious liberty who view marriage as being between one man and one woman are striving to preserve and protect the free exercise rights of people of faith (21) while affording those who accept same-sex relationships the ability to live as they wish.

Against this background, the first section of the remainder of this article opens by briefly examining three cases presaging Obergefell as a prelude to a short review of the Court's judgment. The second section of the paper is divided into three related sections. This part of the article opens with a short review of the nature of academic freedom before identifying the nature of the threats it faces in faith-based institutions if they continue to hold to their belief in marriage as being between one man and one woman. The final part of the article addresses ways to protect the academic freedom rights of believers to engage in scholarship, teach, and speak as they wish, free from outside interference "by those who are determined to stamp out every vestige of dissent" (22) with regard to same-sex unions.

Consistent with the proposed First Amendment Defense Act, (23) the second part of the article advocates that faith-based colleges and universities--paying particular attention to those of the Roman Catholic tradition (24) and their employees--should retain their religious identities. (25) This section also defends the academic freedom rights of faculty members to teach and publish, as well as worship, freely without having to live under a cloud of fear over the potential loss of governmental benefits because they disagree with Obergefell by remaining true to their long held sincere religious beliefs. The article rounds out with a brief conclusion.

Initially, it is important to reiterate the author's belief that individuals who are gay and lesbian should remain free "to cohabitate and raise their children in peace[,]" (26) while being left to live as they wish without restrictions in their daily lives. At the same time, people of faith in the academy, and elsewhere, should have the same freedom to live in ways consonant with their sincerely held religious faiths. As such, this article hopes to add to the dialogue--advocating for a middle ground wherein people of good will on both sides of the divide over the definition of marriage can respectfully disagree on whether same-sex unions should receive governmental imprimaturs or benefits, while, at the same time, safeguarding the rights of each other.

1. Obergefell v. Hodges

   Of course, Obergefell did not arise in a vacuum. Aware of this, it is helpful to begin by providing thumbnail sketches of three cases advancing the rights of gay and lesbians because they set the stage for Justice Kennedy's re-writing of American jurisprudence on marriage. This section then briefly reviews the Supreme Court's opinions in Obergefell (27) because a goal of this paper is to use the essence of their views as a departure point in examining the impact of Obergefell on the academic rights of faculty members and their faith-based institutions.

2. Pre-History

   1. Lawrence v. Texas (28)

      Justice Kennedy's majority opinion in a five-to-four judgment invalidated a statute from Texas making it a crime for two persons of the same sex to engage in specified intimate sexual conduct as unconstitutional when applied to adult males who participated in consensual acts of sodomy in the privacy of their homes. (29)

   2. United States v. Windsor (30)

      In a five-to-four order by Justice Kennedy, the Supreme Court invalidated Defense of Marriage Acts ("DOMA") as an unconstitutional deprivation of the right to liberty of the person protected by the Fifth Amendment by defining marriage as a union of one man and one woman as husband and wife. (31)

   3. Hollingsworth v. Perry (32)

      Chief Justice Roberts wrote the Supreme Court's opinion in yet another five-to-four order invalidating California's Proposition 8, a voter-enacted ballot initiative amending the state Constitution by defining marriage as being between a man and a woman, maintaining that the plaintiffs lacked standing when state officials responsible for doing so chose not to act. (33)

3. Obergefell v. Hodges

   1. Facts/Judicial History

      Obergefell began when fourteen same-sex couples and two men whose same-sex partners were deceased successfully filed suit in Michigan, (34) Kentucky, (35) Ohio, (36) and Tennessee. (37) The plaintiffs sought to obtain marriage licenses or have their partnerships recognized. In a consolidated appeal of all four cases, the Sixth Circuit reversed in favor of the States, holding that officials did not have constitutional duties to grant licenses to same-sex couples who wished to marry or to recognize such arrangements entered into in other jurisdictions. (38) The Supreme Court, in turn, agreed to hear an appeal (39) and reversed in favor of the plaintiffs. (40)

   2. Majority Opinion

      As author of the Supreme Court's five-to-four majority opinion, Justice Kennedy identified the two questions at issue as:

      The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a...