When one's right to marry makes others "unmerry".

• Author: Stern, Shai
• Position: My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights

The Supreme Court's ruling in Obergefell v. Hodges recognized the constitutional right of same-sex couples to marry in all fifty states. The Court premised its ruling on the understanding that a person's ability to marry another person of his or her choosing is one of the most fundamental liberties protected by the Constitution. Some regard the Court's ruling in Obergefell as the end of a long fight for the liberation of the institution of marriage from the shackles of tradition. Yet others, who oppose same-sex marriage for religious reasons, regard it as another ultra-liberal intervention by the state--one which further weakens their ability to exercise their values and beliefs. The Court's decision, therefore, may be regarded as a contemporary peak in a seemingly endless, centuries-long clash between liberal states and diverse cultures and religions characterized by illiberal norms. Critics argue that it sharpens a perceived conflict between the constitutional rights of human liberty and freedom of religion. In contrast, this essay suggests that Obergefell should be seen as a step toward reconciling this ongoing tension. By pointing to the implicit consensus reached by all Supreme Court Justices, this essay argues that Obergefell manifests the state's pluralistic obligation to ensure a diverse society. This obligation maintains a balance between the goals of ensuring equal rights of all citizens and recognizing the limited ability of religious communities to reject liberal norms while preserving their social legitimacy.

1. INTRODUCTION

   In Obergefell v. Hodges, (1) the United States Supreme Court recognized the constitutional right of same-sex couples to marry in all fifty states. (2) The Court held that a person's ability to marry a person of his or her choice is a fundamental liberty guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (3) Viewing marriage as a fundamental liberty, the state must accord it respect. (4)

   The Court's decision in Obergefell garnered widespread public acclaim. (5) President Obama said the decision "will strengthen all of our communities by offering to all loving same-sex couples the dignity of marriage across this great land." (6)

   Nevertheless, while some view Obergefell as the end of a long journey to liberate the institution of marriage from the shackles of tradition, those who oppose same-sex marriage for religious reasons regard it as another ultra-liberal intervention by the state--one which further weakens their ability to exercise their values and beliefs. (7) Opponents worry that recognition of same-sex marriage as a constitutional right will require religious (or other cultural) communities, which oppose same-sex marriage or homosexuality in general, to embrace the practice and absorb it into their internal community norms. (8) This concern is not hypothetical or far--fetched the Court's decision could have genuine ramifications for religious communities. For example, would churches be forced to perform same-sex marriage ceremonies or face prosecution or lawsuits alleging discrimination? (9) Would religious schools be able to forbid same-sex relationships or marriages and retain their tax-exempt status? (10) Would religious businesses owners in the wedding industry--such as bakers, photographers, and florists--be sanctioned for refusing to host or serve same-sex couples? (11) And what would be the implication of the expansion of gay rights for the ability of various communities to realize their shared conception of the good? Religious communities across the United States have raised these concerns, (12) as did the dissenting justices in Obergefell, (13) However, the Court in its majority opinion gave no defining answer, which leaves the decision's implications for America's social fabric highly uncertain.

   Obergefell therefore may be regarded as a case that emphasizes the tension between liberal states and illiberal communities. While liberalism in the Western world expanded in the last century, (14) many communities and individuals within liberal states have rejected outright a variety of liberal norms endorsed by their governments and most of their states' citizens. (15) The emergence of liberal states led to a lasting conflict with citizens who wished to retain preexisting religious or cultural worldviews, which were inconsistent with liberal norms. (16) Liberals often argue that liberalism does not oppose the realization of multiple conceptions of the good within a society and may even value traditional norms and cultural heritages. (17) However, the willingness of liberals to legitimize such traditions vanishes when the traditions fail to satisfy liberal norms, or worse, when they reject them outright. (18)

   To resolve this tension, liberal states struggled to set up an intervention policy which sets guidelines for permissible intervention in the conduct of illiberal communities. (19) Liberal thinkers have offered several approaches for determining when states may intervene in an illiberal community's conduct; all rely on different liberal minimum requirements ("LMRs") that, when not met, may legitimize state action. (20) In a nutshell, an LMR intervention policy regards constitutional principles and rights as the standard for determining a community's social legitimacy. (21) Accordingly, any community which follows that standard should be recognized as legitimate, regardless of its internal norms and beliefs. However, a community which fails to follow that standard should be considered illegitimate, regardless of the reasons for the failure.

   Against this background, one may understand the concerns raised by religious leaders and religious communities across the United States following the Obergefell decision. As Chief Justice Roberts noted in his dissent, "[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...." (22) The main concerns are that religious communities will be forced to observe or implement the right of gay couples to marry--even though the right stands in conflict with these communities' religious norms--under threat of discrimination charges or denial of state financial support. (23) In this sense, Obergefell is a contemporary peak in a seemingly endless, centuries-long clash between liberal states and diverse cultures and religions that have embraced illiberal norms.

   This Article suggests a different, more optimistic, reading of Obergefell. It suggests that the decision is a step toward reconciling the ongoing tension between the liberal state and illiberal communities. By pointing to the implicit consensus reached by all Supreme Court Justices, I argue Obergefell manifests the state's pluralistic obligation to ensure a plural and diverse society. Such a society should allow for coexisting conceptions of the good, which promote both liberal and illiberal values. It therefore rejects the LMR-based intervention policy approach and requires the establishment of a different standard, which strikes a balance between ensuring equal rights of all citizens and recognizing the limited ability of religious communities to reject liberal norms without sacrificing their social legitimacy. However, the Court in Obergefell left the state's pluralistic obligation devoid of any substantial meaning and avoided setting an alternative standard for state intervention in illiberal communities' conduct. In the discussion that follows, I propose to develop this standard further.

   A standard for state intervention rooted in the state's pluralistic obligation should encourage the continued development of liberal human rights but also allow illiberal communities (mainly religious communities) to realize their conceptions of the good, even if their worldviews are fundamentally wrong in the eyes of the state. However, the state's pluralistic obligation, as I argue, should have limits. These limits should not be ethical in nature but structural. The state should focus on the boundaries that buffer the community from the external liberal space. Thus, the state should (1) prevent the illiberal norms established within the communities from escaping into the surrounding liberal society; and (2) ensure that illiberal communities allow their members to belong simultaneously to multiple communities. Recognition of a structurally restricted governmental pluralistic obligation, I argue, may provide a balanced and practical policy to govern the state's intervention in illiberal communities' conduct.

   Part II will briefly review the long history of the legal battle for recognition of same-sex marriages and discuss the Supreme Court's ruling in Obergefell v. Hodges. Although the legal and public debates concerning the ruling are far from over, I believe the Court laid out both the opportunities and the risks that American society faces in light of its ruling. This Part will point to the implicit consensus among all Supreme Court justices in Obergefell, who recognized the obligation of the state to ensure a diverse society in which different conceptions of the good may coexist. While the Court in Obergefell rejects the extant LMR-based intervention policy, it nevertheless refrains from setting an alternative standard for such intervention. In view of the challenges facing American society, it seems that the creation of a new, more pluralistic-minded standard for social legitimacy is of primary importance.

   In Part III, I argue that in spite of the negative reaction of American religious communities to the Obergefell decision, both liberals and religious communities should celebrate it. The reason is that the 5-4 decision regarding the constitutionality of same-sex marriage bans overshadowed an equally important unanimous decision by the Obergefell Court to reject an LMR-based intervention policy and to set a new standard rooted in the state's pluralistic...