In Marriage Equality Cases, Conservatives Argue Discrimination Is a First Amendment Right

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Analysis Law and Policy

In Marriage Equality Cases, Conservatives Argue Discrimination Is a First Amendment Right

Jessica Mason Pieklo

Anticipating a loss this summer before the Roberts Court in the marriage equality cases, conservatives are now leaning on the precedent set by Hobby Lobby and McCullen v. Coakley.

As the U.S. Supreme Court prepares to weigh marriage equality, a series of amicus briefs filed by religious and conservative organizations lays out the latest iteration of right-wing legal and political opposition to advancing equality. While these strategies still have plenty of old-fashioned bigotry and anti-LGBT pseudo-science at their core, conservatives have largely shifted away from claims that same-sex marriage is a slippery-slope toward pedophilia and bestiality. Instead, through briefs filed by right-wing organizations such as Judicial Watch, the Liberty Institute, the Foundation for Moral Law, the Family Research Council, Thomas More Society, and others, conservatives opposing marriage equality have advanced two different but related themes. The first is that a ruling in favor of same-sex couples would be the result of a runaway federal judiciary abusing “the will of the people” in those states that have passed anti-marriage equality laws. The second is that a ruling that requires states to recognize same-sex marriages would render the First Amendment meaningless.

These themes emerged in the Court’s two high-profile reproductive rights decisions last year, Hobby Lobby and McCullen v. Coakleyand conservatives took notice. In Hobby Lobby, the Roberts Court exploded open the Religious Freedom Restoration Act (RFRA), a federal law designed to protect individuals from regulatory overreach. The Court expanded the RFRA to protect corporations from laws their owners decide they have a religious objection to complying with, such as not discriminating on the basis of gender in their employee health insurance plans. Meanwhile, in McCullen, the Roberts Court upended abortion patients’ and providers’ right to be left alone in order to protect the rights of “sidewalk counselors” to “whisper quietly” to folks outside clinics.

The outcome in both cases depended on the Roberts Court transforming decades of religious liberties jurisprudence, which clearly established that personal religious liberty interests end the minute they harm third parties, in order to create a legal doctrine through which conservative Christian ideology serves as a legal shield against civil rights laws. A key rhetorical component of both decisions was the ability of the Roberts Court to center its analysis on the aggrieved conservative Christian plaintiffs, using that perspective as the default setting for religious liberty claims. The conservatives on the Roberts Court didn’t just privilege the religious interests of corporate business owners like the Green Family in Hobby Lobby; they erased the interests of employees in the guise of protecting “the people” from the overreach of the Obama administration.

The legal briefings in opposition to marriage equality deliberately build on this transformation, again shifting the focus to wronged Christians as the people in danger of rights encroachment. “Unfortunately, in their zeal to advance and affirm same-sex marriage, many state actors have ignored or violated the very free speech principles that facilitated free and open dialogue on this once-settled question,” the Liberty Institute brief opens. Those imperiled free speech and open dialogue principles, it continues, include the ability of “Christian ministers, teachers, and leaders” to “preach and speak aloud their millennia-old and sincerely held religious view that marriage is the sacred ‘one flesh’ union of one man and one woman;” the First Amendment right to engage in so-called gay reparative therapy; and dissent against “Government speech codes” that conservatives claim “enforce a superficial and false conformity of belief.”

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The likelihood of those arguments swaying a majority of justices on the Roberts Court to rule against marriage equality later this summer is, I think, slim. Every signal the Court has sent on the marriage equality cases since its ruling last summer striking down the federal definition of marriage as between one man and one woman in the Defense of Marriage Act suggests marriage equality advocates will win in June. That’s good news.

But if those arguments are unlikely to sway even the majority of justices on the Roberts Court to rule that states have the power to ban same-sex marriages, what’s the point of raising them?

First of all, they also allow religious conservatives to do what they do best—claim persecution in order to support their anti-civil rights agenda. “Politically powerful advocates of same-sex marriage would likely use this Court’s decision as a weapon to marginalize persons of faith who will continue to adhere to their millennia-old definition of marriage as the sacred union of one man and one woman,” writes the Liberty Institute. “That in turn would lead to countless additional violations of the Free Speech Clause,” it warns.

The attorneys for Judicial Watch warn of dire “constitutional conflicts” that will inevitably lead to polygamy and intra-family marriage should the Roberts Court rule in favor of marriage equality. “If Petitioners’ reasoning is followed through to its logical and legal conclusion, what legal foundation do the Respondent States, or the United States for that matter, have for denying more than two willing participants to enter into a marriage relationship?” asks Judicial Watch. “If changing culture can be the basis for undoing centuries of legal and moral tradition as to gender, why can it not also be the basis for undoing centuries of legal and moral tradition in terms of the number of people married? Or even siblings?” And the amicus brief from the Concerned Women for America explains, somewhat confusingly, that a ruling in favor of marriage equality both subverts the “will of the people” in states that have banned same-sex marriage and would support the “politically powerful homosexuals and their allies.”

In addition, these are arguments specifically constructed to exploit what conservatives see as political and legal momentum on the inflated issue of attacks on religious liberty.

A win in June for marriage equality is one step toward eradicating sex and gender discrimination. But it is just a step. It’s still perfectly legal in most states, after all, to discriminate against LGBT individuals.

At the same time, there are also currently 17 states considering passing or expanding their own versions of the Religious Freedom Restoration Act, the federal statute that spawned a thousand contraception benefit lawsuits. States like Indiana and Arkansas have received a lot of attention recently for their RFRA efforts, in part because those laws granted explicit permission for business owners to discriminate against customers based on their sexual orientation, under the guise of protecting religious expression.

This explosion at the state level of mini-RFRAs is in direct response to conservatives’ anticipated loss at the Supreme Court this summer in the marriage equality cases. They are designed to push the issue of just how far the law is willing to go to enshrine anti-LGBT discrimination in the name of religious liberties, all the way up to the Roberts Court. So the briefs before the judges now are simply priming the well for the battle that lays ahead. In practical terms, they’re a way of gently introducing the legal arguments against equality to the Court while politicians like Sen. Ted Cruz (R-TX) and Mike Huckabee work on ginning up public support. Like we saw in the months leading up to the Hobby Lobby arguments, and like we’re witnessing all over again in the nonprofit challenges to the birth control benefit, they are part of a coordinated campaign of legal briefings and political talking points designed to sway the public while simultaneously building the support of a conservative majority of justices.

So as we head into oral arguments in the marriage equality cases, and as we await the Roberts Court decision later this summer, let’s remember that conservatives always play the long game. While progressives celebrate an anticipated win for equality in June, religious advocacy organizations will be busy drafting and filing their next round of legal challenges to that win, and to other equality advancements. Thankfully their amicus briefings in the marriage equality cases have given us a preview and time to prep our response.