Traditional Marriage on Trial: The
Supreme Court, Same-Sex Marriage,
and the Fate of Secular
Argumentation
Jenna Reinbold
In the course of 2015’s landmark decision legalizing same-sex marriage across the country, the U.S. Supreme Court was called upon to
address, among other things, the question of whether same-sex marriage threatens the welfare of Americans. The court’s answer to this
question is essentially reducible to one sentence: “The respondents
have not shown a foundation for the conclusion that allowing
same-sex marriage will cause the harmful outcomes they describe.”1
This succinct dismissal of a line of reasoning that has for years dominated the courtroom discourse of so-called traditional marriage was
not surprising; it followed on the heels of a series of withering criticisms from various lower courts (most famously, the opinion
penned by Richard Posner in the 2014 case of Baskin v. Bogan), as
well as on the heels of an unconvincing—what many have not hesitated to call incoherent—presentation of this argument’s merits
during the oral arguments for Obergefell v. Hodges. In a previous
article, published in 2014 in the Journal of Church and State, I
traced the development and predicted the decline of this line of argumentation—a line that has emphatically downplayed longstanding
religious and moral arguments against same-sex marriage in favor
of arguments based on the threats posed by same-sex marriage to
“responsible procreation,” to the welfare of children, and to the
health of society. In my previous article, I endeavored not merely to
JENNA REINBOLD (BA, Portland State University; MA, PhD, University of California,
Santa Barbara) is assistant professor of religion at Colgate University. She has published articles in Human Rights Review, Journal of Church and State, and Journal of
the American Academy of Religion. Special interests include religion and law in the
United States, religion and human rights, and secularism and secularity.
1. Obergefell v. Hodges, 576 U.S., “slip op,” U.S. Supreme Court (2015), Opinion of
the court at 26 – 27.
Journal of Church and State vol. 59 no. 1, pages 59–101; doi:10.1093/jcs/csv100
Advance Access Publication November 11, 2015
# The Author 2015. Published by Oxford University Press on behalf of the J. M. Dawson
Institute of Church-State Studies. All rights reserved. For permissions, please e-mail:
[email protected]
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understand the genesis of such argumentation but also to push back
against the tendency among many legal professionals to hold such
argumentation in immediate contempt. Rather, I argued, the repeated
deployment of such language should attune us to a unique matrix of
problems faced by religious conservatives aspiring to advocate for
traditional marriage within the public sphere: namely, the problem
of how to articulate the argument for traditional marriage without
invoking the religious doctrines and beliefs that so clearly inform
their position on this issue. Moreover, I argued, the rise and decline of
this brand of argumentation in the courtroom debate over same-sex
marriage is not merely a problem for religious opponents of same-sex
marriage; it reveals a series of deep-seated tensions endemic to American law and, perhaps, to secular law in general. The unfolding of Obergefell has served to roundly validate the trajectory and the concerns
outlined in my precious article. Given the fact that this case is likely to
stand as the final verdict on the argument for traditional marriage, it
is useful to consider the particular ways in which Obergefell so aptly
exemplifies this topic. In this article, I will highlight the manner in
which, in the course of navigating the debate over same-sex marriage
in Obergefell, the U.S. Supreme Court simultaneously demanded and
rejected precisely the brand of argumentation that I described in my
previous article. In so doing, it not only handed a definitive defeat to a
legal strategy that has been a mainstayof contemporary traditional marriage advocacy, but it also reproduced and even exacerbated a number
of the deep-seated tensions that I have claimed rest at the heart of our
liberal democratic legal system.
Science: Searching for the Secular
My previous article traced a trajectory of landmark Supreme Court
cases that, over the past fifty years, have helped to foreclose upon
the possibility of raising religious or even broadly moral objections
to same-sex marriage within the courtroom. Cases such as Loving
v. Virginia (1967), Lemon v. Kurtzman (1971), and Lawrence v. Texas
(2003) have worked together to significantly constrain the language
available to conservative religious advocates for articulating their
legal and political agendas, first by prohibiting overt religious argumentation in support of particular public policies and, second, by
casting suspicion even on the use of less overtly religious “traditional”
moral sensibilities as a justification for such policies.2 In the face of
this constraint, advocates of traditional marriage have repeatedly
2. Jenna Reinbold, “Sacred Institutions and Secular Law: The Faltering Voice of
Religion in the Courtroom Debate over Same-Sex Marriage,” Journal of Church
and State 56, no. 2 (Spring 2014): 248– 68, 258 – 64.
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endeavored to secularize their arguments by framing the case against
same-sex marriage in one of three ways: in natural-scientific terms of
“responsible procreation” and “genetic affinity,” in social-scientific
terms of “children’s welfare” and “social stability,” or in legal terms
of states’ rights.3 Hearkening to Ben Schuman, I have used the term
“secular argumentation” to describe this type of discourse, which
endeavors to deploy scientific and legal languages in an effort to translate religious precepts into arguments that will presumably pass
muster before a court.4 Obergefell v. Hodges fits seamlessly into the
trajectory of secular argumentation traced in this previous article:
within moments of commencing the oral argument in Obergefell on
behalf of respondents opposed to the legalization of same-sex marriage, John J. Bursch, lawyer for the respondents, is called upon by
the court to dismiss the possibility that either religion or tradition
might serve as viable sources for the case against same-sex marriage.
Bursch’s disavowal of the logics of religion and tradition unfold in
response to a line of questioning initiated almost immediately by
Steven Breyer, who remarks that
marriage, as the States administer it, is open to vast numbers of people who
both have children, adopt children, don’t have children, all over the place.
But there is one group of people whom they won’t open marriage to. So
they have no possibility to participate in that fundamental liberty. That is
people of the same sex who wish to marry. And so we ask, why? And the
answer we get is, well, people have always done it. You know, you could
have answered that one the same way we talk about racial segregation. Or
two, because certain religious groups do think it’s a sin, and I believe they
sincerely think it. There’s no question about their sincerity, but is a purely
religious reason on the part of some people sufficient?5
Breyer’s question about the admissibility of purely religious reasons
is, of course, rhetorical; the clear answer is “no,” as Bursch is well
aware. Bursch quickly assures the court that “those answers one
and two are not our answers” and then immediately launches into
the language of natural science:6
Our answer number one is that the marriage institution did not develop to
deny dignity or to give second class status to anyone. It developed to serve
purposes that, by their nature, arise from biology. Now, imagine a world
today where we had no marriage at all. Men and women would still be
getting together and creating children, but they wouldn’t be attached to
3. Ibid., 252 – 58.
4. Ibid., 258.
5. Oral arguments for Obergefell v. Hodges, 576 U.S. ____ (2015), transcription
available from Oyez.org, http://www.oyez.org/cases/2010-2019/2014/2014_
14_556.
6. Ibid.
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each other in any social institution. Now, the—the marriage view on the
other side here is that marriage is all about love and commitment. And as
a society, we can agree that that’s important, but the State doesn’t have
any interest in that.7
Biology—more specifically, procreation—is the force that binds the
institution of marriage to the regulatory interests of the state. In
this view, marriage is essentially a political mechanism designed to
channel a basic biological phenomenon into stable social configurations. Those whose sexual orientations have led them to bow out of
the cultivation of relationships that have the potential to result in
pregnancy are welcome to enter into committed relationships—and
perhaps even to demand equitable governmental support for these
institutions—but they have no logical claim on the institution of marriage. Marriage, Bursch asserts, is something more than mere “love
and commitment”; it is an enduring answer to a particular “social
problem” arising from human biology.8
Bursch’s shift to the framework of biology is unquestionably
intended to shut down the association, so readily drawn by Breyer,
between opposition to same-sex marriage and the forbidden languages of religion, morality, and tradition. In this respect, Bursch’s
argument is a prime example of secular argumentation. And while
the argument itself ultimately turns out to be something of a hybrid
of natural- and social-scientific claims, the natural fact of procreation
is unquestionably doing the deep work of grounding both the definition of marriage and the legal restrictions for which Bursch is advocating. In this respect, Bursch is operating very much in line with
the broader trajectory of traditional marriage advocacy over the
past decade: in light of the tremendous empirical authority wielded
by the natural sciences within our society—the fact that the realm
of natural science is, in the minds of most Americans, the realm of
secular reason par excellence—traditional marriage advocates have
invested a significant amount of energy into the development of a
coherent natural-scientific argument for their position. This argument has taken a number of forms, ranging from the straightforward
“chemical” analogy offered up to the state Supreme Court of California9 to the “health risk” argument offered up in an amicus brief by
former Arkansas Governor Mike Huckabee.10 In all of its various manifestations, however, the biological fact of human procreation has
served as a consistent source upon which advocates have drawn in
7. Ibid.
8. Ibid.
9. Reinbold, “Sacred Institutions,” 254.
10. Brief for Mike Huckabee Policy Solutions ad Family Research Institute as
Amici Curiae, Obergefell v. Hodges, 576 U.S. ___ (2015).
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their endeavors to lay an empirical, nontheological foundation for
heterosexual marriage.
However, an examination of the broader traditional marriage argument within Obergefell reveals that the reference to procreation
serves to do more than just shift the conversation from religion; it
serves to frame traditional marriage as a phenomenon that supersedes human law and politics—a phenomenon that, in the words of
Idaho Governor C. L. “Butch” Otter, “pre-exists the law” even as it is
“supported in it by virtually all human societies.”11 This formulation
effectively locates heterosexual marriage beyond the purview of the
very social and political institutions that have arisen throughout
human history to regulate it. Traditional marriage preexists the regulatory mechanisms of the state because human procreation, the phenomenon that gave rise to the necessity of marriage, preexists them.
This argument endeavors to set “nature” to the task not merely of secularizing the discourse of traditional marriage but also of reducing
same-sex marriage to something human-created and contingent, categorically different from the a priori phenomenon of heterosexual
marriage. Bursch does not succeed in bringing this line of argument
to fruition in the course of his oral argument, but it is exemplified
in the amicus brief submitted on behalf of the state of Alabama by
Governor Robert J. Bentley:
Marriage is a natural reality that States must distinguish from other forms
of human sociability, including same-sex relationships, for the purpose of
securing the rights and well-being of children. By contrast to marriage,
same-sex “marriage” is a social experiment, a recent product of positive
law. Its purpose is to affirm the sexual desires and the choices of adults.
This experiment threatens to obscure the natural rights and duties of marriage and parentage.12
Bentley’s argument has the effect of reducing same-sex marriage to a
whimsical—and, of course, potentially destabilizing—policy choice.
To conflate such a policy choice with the immutable logic of
“natural” marriage, as so many Americans appear to be doing, is, by
this line of logic, simply inaccurate.13 As Bentley puts it, “The law
maintains distinct and non-fungible offices for father and mother
because mothers and fathers are distinct and non-fungible in
fact.”14 The fact of procreation furnishes the empirical ground for
making this claim.
11. Brief for C. L. “Butch” Otter, Governor of Idaho, as Amicus Curiae, p.5, Obergefell v. Hodges, 576 U.S. ___ (2015).
12. Brief for Robert J. Bentley, Governor of Alabama, as Amicus Curiae, p. 4, Obergefell v. Hodges, 576 U.S. ___ (2015).
13. Ibid., 15.
14. Ibid., 14.
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Moreover, the tendency of marriage equality advocates to conflate
the “social experiment” of same-sex marriage with the “natural”
logic of heterosexual marriage is more than merely inaccurate: the
language of biology allows Bentley to infuse such a conflation with
dramatic political implications as well. In short, by this line of logic,
to legalize same-sex marriage is to upend not just the bedrock of
society but the very structure of legitimate politics:
Altering the jural relations within the biological family is not within the
police powers of the State, much less the enumerated powers of the national
government, because the rights of natural marriage and biological parenting are among “the basic civil rights of man. Marriage and procreation are
fundamental to the very existence and survival of the race.” Skinner
v. Oklahoma, 316 U.S. 535, 541 (1942).15
The fact of procreation endows heterosexual marriage with an innateness that, without a hint of help from the language of religion,
elevates this form of marriage above the mechanics of positive
law—including the mechanics of fundamental rights as endowed by
the Bill of Rights. Because human procreation precedes the creation
of the state, the rights that inhere to the institution of “natural”
marriage precede the rights-giving power of the state:
To be clear, to affirm that the rights and duties of the biological family are
fundamental does not entail that they are incorporated against the State
through the Due Process Clause of the Fourteenth Amendment. It is
simply to affirm that they emanate from sources of authority other than
the State’s sovereignty to enact positive laws. . . . Because the duties are
grounded in nature and not the will of the lawmaker, the State has no
power to reconstitute the fundamental rights and duties of the biological
family.16
Marriage, by this definition, is sui generis: it institutionalizes “a particular type of human sociability that has its own complex of goods
that no other human relationship can replicate.”17 The state has no
right to redefine such an institution; in fact, it might even have an obligation to “distinguish in law between relationships that are different
in biological fact, and which have radically different consequences
for state policy.”18 The fact that some states have opted not to preserve this distinction certainly provides no justification for the
court to force all states to abandon such a distinction. Indeed, to
force states to reformulate an institution that hearkens back to the
prepolitical, natural state of humankind—to effectively make
15.
16.
17.
18.
86
Ibid., 15.
Ibid., 15– 16 [italics added].
Ibid., 26– 27.
Ibid., 26.
Traditional Marriage on Trial
“revisions to the very fabric of society”—represents the height of
political illegitimacy.19
In his oral argument before the court in Obergefell, Bursch manages
to get very little of this logic onto the table, but this line of thought is
reflected in his assertion that a legal definition of marriage geared
toward “emotional commitment” rather than toward procreation is
essentially pointless—outside of the purview of state interest. “If
we’re trying to solve the problem [of unregulated procreation], we
wouldn’t solve it by saying, well, let’s have people identify who they
are emotionally committed to and recognize those relationships.”20
The natural-scientific language of biology furnishes the crux of the
claim that same-sex marriage simply does not fall under the purview
of government. Moreover, it furnishes a confirmation of the claim,
raised by Bursch at the same moment, that “the marriage institution
did not develop to deny dignity or to give second class status to
anyone.”21 In theory, in other words, the genesis of marriage as a sociopolitical solution to the natural problem of procreation immunizes
advocates of traditional marriage from the charge of animus against
same-sex couples. Given the pervasiveness of the presumption that
it is such animus that truly rests at the heart of the opposition to
same-sex marriage, Bursch’s claim that traditional marriage is fundamentally about biology rather than socio-political policy preference
represents a crucial means by which advocates of traditional marriage
have attempted to dissociate their arguments not only from the legal
problems of religion and tradition but also from the uncomfortable
charge of bigotry.
From Science to State’s Rights
The “natural marriage” argument possesses all of the famed merits of
a secular argument: it brackets the questions and claims of religion,
thus speaking in a language accessible to individuals of all religious
and moral sensibilities; it draws upon empirical, “non-fungible” evidence for its normative assertions; and it obeys the standards for
legal argumentation that have become the norm over the past fifty
years. What it does not do, however, is address the key question of
how opening the institution of marriage to same-sex couples would
compromise the state’s interest in channeling procreation into
stable relationships conducive to the welfare of children. Not surprisingly, this is precisely the matter to which the court, in the form
19. Brief for Eagle Forum Education and Legal Defense Fund, as Amicus Curiae,
25– 26, Obergefell v. Hodges, 576 U.S. ___ (2015).
20. Oral arguments for Obergefell v. Hodges, 576 U.S. ____ (2015).
21. Ibid.
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of Elena Kagan, turns in response to Bursch’s natural marriage
argument:
Mr. Bursch, I understand that argument. It’s the principal argument that you
make in your briefs, that same-sex marriage doesn’t advance this State
interest in regulating procreation. Let’s just assume for the moment that
that’s so. Obviously, same-sex partners cannot procreate themselves. But
is there—in addition to that, are you saying that recognizing same-sex marriage will impinge upon that State interest, will harm that State interest in
regulating procreation through marriage?22
Forall its ostensible merits, the argument from biologyoffers no coherent response to such a question. Thus, Kagan’s question—bolstered by
Ginsburg’s reminder that the legalization of same-sex marriage would
do nothing to deprive heterosexual couples of either the incentive
to marry or the benefits that come with marriage—has the effect of
almost immediately shutting down the naturalistic language that
has provided such an anchor for the courtroom argument against
same-sex marriage. Even upon receiving the direct help of Antonin
Scalia, who effectively admonishes his colleagues for their line of questioning while insisting that the respondents’ sole task is to show
that the institution of marriage is fundamentally “inapplicable” to
same-sex couples, Bursch is still reduced by this line of questioning
to a state of speculation and self-contradiction.23 The extension of
the institution of marriage to same-sex couples—the cultural shift
from an understanding of marriage as “all about kids” to an understanding of marriage as “all about emotion and commitment”—
could effect significant social changes, Bursch surmises.24 Such
changes could include a reduction of “the rate that opposite-sex
couples stay together, bound to their children,” although Bursch
himself acknowledges that this potential outcome is pure conjecture.25 In something of a non sequitur, Bursch evinces concern for
“all the children, children of opposite-sex couples and children of
22. Ibid.
23. Ibid.
24. Ibid.
25. “If this Court ensconces in the Constitution a new definition of marriage and it
reduces the rate that opposite-sex couples stay together, bound to their children,
because of that different understanding, even a 1 percent change . . . is many,
many children.” Ibid. A few moments later, Bursch asserts that “if you’re changing
the meaning of marriage from one where it’s based on that biological bond to one
where it’s based on emotional commitment, then adults could think, rightly, that
this relationship is more about adults and not about the kids. Not the case with the
Plaintiffs in this case. We all agree that they are bonded to their kids and have their
best interest at heart. But when we’re talking about, Justice Kennedy, over
decades, when laws change, when societal views on marriage change, there are
consequences to that.” Ibid.
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Traditional Marriage on Trial
same-sex couples,” although he offers no coherent response to the
court’s assertion that the children of same-sex couples are likely
being harmed by the exclusion of their parents from the institution
of marriage, the very institution that Busch claims is designed to
ensure the welfare of all children.26 As his natural- and social-scientific
claims deteriorate, it becomes clear that the remaining secular foundation for Bursch’s argument against the nationwide legalization of
same-sex marriage is an assertion that the people of each state have
the right to have their “reasonable” concerns about the consequences
of same-sex marriage preserved within the law.27
Almost unwittingly, Bursch’s argument from biology has collapsed
into a states’ rights argument—an argument that is a far cry from the
natural- and social-scientific logic that he and so many others have
attempted to harness in their advocacy against same-sex marriage.
In the first place, while the states’ rights argument is in principle a
secular argument, the prerogative of voters to pass their normative
beliefs and convictions into law obviously furnishes a wide berth
for religious and other comprehensive doctrines to enter into the construction of public policy. The states’ rights argument thus hardly
stands alone as a justification for excluding a particular population
from the equal protection of the law. Even under the court’s leaststringent form of judicial review, such exclusions must be legitimized
by something more than a mere belief, intuition, or, as Sotomayor
immediately labels it, “feeling” on the part of voters.28 With only
the most specious empirical proof to support the notion that the
welfare of children or the rate of marriage is compromised by a broadening of the institution of marriage to same-sex couples, the respondents are left with nothing other than hypotheticals to put before the
court—something that Bursch repeatedly attempts to do without
success. Ultimately, the dearth of empirical proof of the danger of
same-sex marriage, combined with the uncomfortable manner in
which the logic of states’ rights resonates with the history of antimiscenegation legislation in this country, renders the states’ rights line of
argumentation an undesirable vein for traditional marriage advocates to mine. Yet, given the many restrictions they face in articulating
their aversion to the legalization of same-sex marriage, it is not the
least bit surprising to watch Bursch fall back repeatedly upon this
26. Ibid.
27. “A reasonable voter, which is what we’re talking about here, could believe that
there would be a different outcome if those two marriages were influenced by
those two different belief systems.” Ibid.
28. “[W]ith something as fundamental as marriage,” Sotomayor asks Bursch,
“why would that feeling, which doesn’t make any logical sense, control our
decision-making?” Ibid. Sotomayor asserts that this suspicion applies even
under the least-stringent rational-basis standard.
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very argument—ultimately invoking it as the final take-away point of
his closing statement.
The Obergefell opinion, delivered by the court on June 26, 2015, ultimately serves as a testament to the thoroughness with which the scientific discourse offered up by Bursch is eclipsed by his closing logic
of states’ rights. Kennedy, author of the majority opinion, dismisses
the entire edifice of social-scientific speculation about the harms of
same-sex marriage in the course of a single paragraph. More damning
still, he pointedly refuses to tie the longstanding heterosexual definition of marriage to biology at all, instead describing it as a product of
culture:
It cannot be denied that this Court’s cases describing the right to marry
presumed a relationship involving opposite-sex partners. The Court, like
many institutions, has made assumptions defined by the world and time
of which it is a part.29
There is little question that entrenched, unquestioned cultural assumptions can and do comprise a reality no less powerful than the empiricism
of biology, as any self-respecting anthropologist will attest. However,
Kennedy’s easy ascription of the hegemony of heterosexual marriage
to “the world and time” of earlier eras rather than to biology represents
a significant diminishment of the argument for traditional marriage. Far
from the a priori foundation that advocates claim it to be, procreation is,
according to the majority of the court, “only one” element at the heart of
the institution of marriage.30 Moreover, the fact that procreation is
demonstrably not universal among married opposite-sex couples—
reflected in the fact that “[a]n ability, desire, or promise to procreate is
not and has not been a prerequisite for a valid marriage in any
State”—leads Kennedy almost inevitably to venture an alternative foundation for the institution of marriage:
Marriage responds to the universal fear that a lonely person might call out
only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to
care for the other.31
In a near-perfect encapsulation of the “emotional commitment” model
of marriage that Bursch works so hard to discredit, Kennedy depicts
marriage as an institution arising in response to the human quest for
love and security, with both childrearing and the “symbolic recognition
29. Obergefell v. Hodges, 576 U.S., “slip op,” U.S. Supreme Court (2015), Opinion
of the court at 11– 12.
30. Ibid. at 16.
31. Ibid. at 15, 14.
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and material benefits” of the state entering only secondarily.32 In a
precise inversion of the juxtaposition invoked by Bursch during oral
argument, the Obergefell opinion portrays marriage as one of society’s
preeminent vehicles for emotional flourishing—a vehicle fundamentally geared toward, though by no means limited to, the innate desire
of two individuals “to become greater than something once they
were.”33
“The limitation of marriage to opposite-sex couples may long have
seemed natural and just,” Kennedy acknowledges, “but its inconsistency with the central meaning of the fundamental right to marry is
now manifest.”34 With these words, Kennedy reduces the empirical biological difference between heterosexual and same-sex couples to a
factor that is, at best, inconsequential and, at worst, the source of a mistaken and even pernicious premise in the debate over marriage equality.
This dismissal, as we have seen, leaves respondents with little other
than the states’ rights argument to press in defense of the traditional
marriage amendments and laws before the court, and Kennedy duly
dedicates the final portion of the majority opinion to the dismantling
of this argument. Even more significant, however, is the manner in
which Kennedy’s heavy emphasis upon the states’ rights argument is
replicated by even those members of the court who are most sympathetic to the traditional marriage position: namely, the four dissenting
justices, none of whom dedicates more than a page to the naturaland social-scientific claims that Bursch and his ilk take such pains to
articulate.35 Of the four dissenters, John Roberts and Samuel Alito are
the only two to offer anything close to a validation of the respondents’
scientific discourse. Roberts goes so far as to claim that the fact of procreation and the social value of channeling such procreation furnish
premises for heterosexual marriage “so fundamental that they rarely
require articulation.”36 Yet, aside from a brief reference later in his
dissent to the illegitimacy of the court’s endeavor to redefine an institution of such evident biological and sociological (not to mention historical) venerability, Roberts devotes nearly every line of the remaining
twenty-eight pages of his dissent to a critique of the court’s failure to
respect states’ rights—its failure to uphold “the doctrines of federalism
and separation of powers.”37 Alito, keeping somewhat more of a distance, proposes that the court should have taken more seriously the
possibility that the respondents have presented “reasonable secular
32.
33.
34.
35.
36.
37.
Ibid. at 16.
Ibid. at 28.
Ibid. at 17.
Obergefell v. Hodges, Roberts dissenting at 4 –5.
Ibid. at 5.
Ibid. at 15.
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grounds for restricting marriage.”38 Like Roberts, however, he devotes
the majority of his short opinion to an elaboration of the manner in
which this decision has “usurp[ed] the constitutional right of the
people.”39 Antonin Scalia, for his part, dismisses the scientific arguments for heterosexual marriage out of hand:
The substance of today’s decree is not of immense personal importance to
me. The law can recognize as marriage whatever sexual attachments and
living arrangements it wishes, and can accord them favorable civil consequences, from tax treatments to rights of inheritance. These civil consequences—and the public approval that conferring the approval of
marriage evidences—can perhaps have adverse social effects, but no
more adverse than the effects of many other controversial laws. So it is
not of special importance to me what law says about marriage.40
What is of “overwhelming” importance to Scalia, it turns out, is precisely the matter of federalism and the separation of powers that
reside at the center of Roberts’ dissent—the matter, as he puts is, of
“who it is that rules me.”41 Finally, Clarence Thomas eschews reference
to the respondents’ scientific arguments altogether. And, although the
states’ rights argument plays a secondary role to Thomas’ critique of
the court’s misreading of the “liberty” enumerated in the Fifth and
Fourteenth Amendments, even his dissent is heavily inflected by a
diagnosis of the legalization of same-sex marriage as a problem of federalism—as the product of a jurisprudence that “exalts judges at the
expense of the People from whom they derive their authority.”42 Ultimately, in what is likely to be the court’s final consideration of the
merits of the argument for traditional marriage, the fact of procreation
and its attendant social ramifications is afforded four paragraphs of
consideration by the justices in the majority and scarcely three
pages’ worth of consideration by the dissenters.
“Decent and Honorable Religious Premises”
I have argued previously that secular argumentation of the sort that
traditional marriage advocates have been forced to take on creates
a particular burden for citizens whose reservations stem from religious beliefs or doctrines. I highlighted the subtle burden of a legal
system that demands a translation of religious policy preferences
into secular arguments and then dismisses or even denigrates
those who actually attempt this translation, and I suggested that we
38.
39.
40.
41.
42.
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Obergefell v Hodges, Alito dissenting at 4.
Ibid. at 6.
Obergefell v. Hodges, Scalia dissenting at 1 – 2.
Ibid. at 2.
Obergefell v. Hodges, Thomas dissenting at 2.
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give serious consideration to the possibility that such a situation
might serve to bolster the legitimacy of legislatures, at the emphatic
expense of the courts, in the eyes of religious conservatives.43 The
court’s nationwide legalization of same-sex marriage, combined
with growing public support for a broadening of the institution of
marriage, has foreclosed upon the possibility of a substantial legislative push-back against marriage equality. Yet, these developments
have most certainly not foreclosed upon the perception that the
court has usurped the democratic process by foisting a particular
policy preference upon all Americans in the guise of a constitutional
right—a perception given voice and legitimacy by each of the dissenting justices in Obergefell. Leaving aside this perception and the indubitable traction it will continue to command among religious
conservatives, however, the near-universal consensus in the wake
of Obergefell is that the battle over same-sex marriage will now take
place within the realm of free exercise exemption claims on behalf
of religious objectors. Commentators express mixed opinions as to
whether this shift bodes well or ill for Americans whose religious sensibilities put them at odds with same-sex marriage: perhaps it will
temper some of the intractable tensions that have driven the
culture wars since the late 1970s,44 perhaps it will serve to bolster
the Roberts court’s apparent willingness to extend remarkably
robust free exercise protections,45 or perhaps it will simply usher in
the end of religious conservatives’ political negotiating power.46
Whatever the case, there is little question that religious objectors to
same-sex marriage have suffered a significant defeat in Obergefell—a defeat, moreover, that spans well beyond the particular
bounds of this case. Such a suggestion may appear ironic given Kennedy’s insistence that the Obergefell opinion takes account of “the
decent and honorable religious or philosophical principles” that
43. Reinbold, “Sacred Institutions,” 267– 68.
44. See, for example, Paul Waldman, “Republicans Need to Find a New Culture War
to Fight,” The American Prospect, June 28, 2015, http://prospect.org/article/
republicans-need-find-new-culture-war-fight.
45. See, for example, Marci A. Hamilton, God vs. the Gavel: The Perils of Extreme
Religious Liberty, 2nd ed. (Cambridge, UK: Cambridge University Press, 2014);
Leslie C. Griffin, “If Conestoga Wins, Watch Out Civil Rights,” Hamilton and
Griffin on Rights, March 24, 2014, http://prospect.org/article/republicans-needfind-new-culture-war-fight; David H. Gans, “The Roberts Court Thinks Corporations Have More Rights than You Do,” New Republic, June 30, 2014, http://www.
newrepublic.com/article/118493/john-roberts-first-amendment-revolutioncorporations.
46. See, for example, Ross Douthat, “The Terms of Our Surrender,” New York
Times, March 1, 2014, http://www.nytimes.com/2014/03/02/opinion/sunday/
the-terms-of-our-surrender.html?_r=0; Carl Eric Scott, “The Post-Obergefell Political Trap,” National Review, July 3, 2015, http://www.nationalreview.com/
postmodern-conservative/420740/post-obergefell-political-trap-carl-eric-scott.
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may compel certain citizens to oppose same-sex marriage.47
However, the broader logic of Obergefell ultimately belies Kennedy’s
paean in a number of ways.
First, it is worth considering the manner in which respondents’
secular argumentation in Obergefell has invited the broader American public to see religion as a pretext for simple bigotry. Given the
inability of the defense in Obergefell to solidify the connection
between the fact of procreation and the need to exclude nonprocreative couples from the institution of marriage, and given the paucity of
evidence to support the claim that same-sex marriage threatens
either society or children, opponents of the nationwide legalization
of same-sex marriage are ultimately left with little other than a procedural argument in support of their position: with no concrete claims
to undergird their advocacy for traditional marriage, respondents are
essentially reduced to advancing the proposition that, because the
Constitution does not expressly enumerate a right to marriage,
local majorities therefore have a right to translate their unempirical
beliefs about same-sex marriage into restrictive laws. This is an unenviable position to be in not merely for the purpose of winning a case
before today’s court but also for the purpose of winning the hearts
and minds of fellow Americans. Indeed, it is difficult to imagine
how the collapse of respondents’ scientific arguments into the logic
of states’ rights could lead to anything other than the conclusion
that the actual substance of traditional marriage advocacy is simple
animus. This is the case in the first place because the very work of generating an acceptable legal argument in favor of traditional marriage
has, as we have seen, involved a concerted downplaying of the specific
religious beliefs and doctrines that often actually inform traditional
marriage advocacy. Thus, although it is by no means false to intuit a
deeper logic running beneath the shaky secular language deployed
in favor of traditional marriage, such logic is just as likely a
symptom of the endeavor to downplay the language of religion—as
our legal system has consistently demanded—as it is a smoking
gun attesting to animus. Yet, by their very nature, the courtroom arguments of Obergefell render the complex universe of religious
meaning-making around this issue invisible—inaccessible to the
broader public, who is basically implored by Bursch and his ilk to
overlook it. When respondents’ tenuous secular rationales eventually
crumble under legal interrogation, the practical effect of ignoring the
language of religion is to collapse the longstanding, venerable proscriptions of particular religions into a language of groundless personal aversion.
47. Obergefell v. Hodges, Opinion of the court at 19.
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We can hardly expect the court to delve into this more theoretical
matrix of problems in its opinion, and, with a few notable exceptions
(discussed below), it does not: instead, the majority opinion references the work of religion that is undoubtedly going on in the background of respondents’ arguments in only the most oblique of
terms. As Kennedy puts it,
Many who deem same-sex marriage to be wrong reach that conclusion based
on decent and honorable religious or philosophical premises, and neither
they nor their beliefs are disparaged here. But when that sincere, personal
opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that
soon demeans or stigmatizes those whose liberty is then denied.48
It is important to note that even this cursory reference to religion
works in the service of highlighting the fundamentally unsecular
nature of the traditional marriage argument. In other words, the religious aversions undergirding advocates’ arguments for traditional
marriage may be “decent and honorable,” but they are—despite
Bursch’s best efforts to deny it—religious and, therefore, unacceptable grounds for public policymaking. Kennedy, however, does not
stop there: in addition to reminding us of the religious commitments
that lurk beneath respondents’ advocacy, he points out that the practical effect of such commitments is essentially to enact human degradation into law. Although these words by no means amount to a
straightforward accusation of animus on the part of religious opponents to same-sex marriage, they have the practical effect of yoking
the religious reservations that many Americans harbor about
same-sex marriage to a host of unsavory socio-political consequences. Of course, to label Kennedy’s maneuver here “entirely gratuitous,” as Roberts does in a more withering moment of his dissent, is
something of a misreading of his broader logic: Kennedy limits his
assessment of the negative consequences of such religious and philosophical premises to the realm of law—to the effect that such premises would have if codified into the system of rules that all
citizens are required to live by.49 Kennedy quite pointedly refrains
from accusing religious conservatives of actually harboring the
biases that so inevitably bleed into public life when their convictions
are allowed to become law. On the other hand, in what amounts to one
of only two passages within the entirety of the majority opinion to
address the religious nature of many Americans’ opposition to
same-sex marriage, the court leaves its audience with little other of
substance than a practical association between religion and
48. Ibid.
49. Obergefell v. Hodges, Roberts dissenting at 29.
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discrimination.50 From here, it is by no means a leap to conclude that
the religious reservations of traditional marriage advocates run
counter to today’s “better informed understanding” of the promise
and the principles of the Constitution—and that, although such reservations are entitled (at least for the time being51) to legal protection,
they are essentially antithetical to the spirit of the American political
project.52
Ultimately, then, even as Kennedy vaunts the decent and honorable
religious scruples of the respondents, he effectively locates such citizens on the wrong side of the evolving history of human dignity. He
also, of course, locates such citizens on the wrong side of both the due
process and equal protection guarantees of the Fourteenth Amendment. This raises a significant tension between the Fourteenth
Amendment and the free exercise guarantee of the First Amendment,
which Kennedy invokes simultaneously within his discussion of this
issue. This tension is significant and complex, and there is little doubt
that it will heavily inform any future church and state conflicts
around the issue of same-sex marriage. Yet, this tension is not
merely sidestepped in the Obergefell opinion; it is all but effaced.
This effacement is accomplished largely through Kennedy’s deployment of a very particular formulation of “religion,” a formulation
that, in dating back at least to the 1878 United States v. Reynolds
case, is one of the court’s most venerable constructs of this term.
Reynolds—which famously upheld a federal ban on a central tenet
of the nineteenth-century LDS Church while simultaneously assuring
Mormons of their right to freely exercise their religion—relied upon
a formulation of religion that ascribed a seminal role to belief and
thus defined the free exercise of religion primarily in terms of
the freedom to cultivate and articulate such beliefs (or, as the
court called them, “opinions”). The government, the Reynolds court
asserted, is “deprived of all legislative power over mere opinion, but
[is] left free to reach actions which [are] in violation of social duties
or subversive of good order.”53 Although Kennedy by no means
goes so far as to deny religious Americans the right to engage in particular actions, his description of the religious features most germane
to the debate over same-sex marriage—and his description of the
50. Religion is overtly mentioned five times in the majority opinion, but only
twice in the specific context of a consideration of religion’s role as a source of
opposition to same-sex marriage. Kennedy’s second treatment of this issue is discussed below.
51. Jonathan V. Last, “You Will Be Assimilated,” The Weekly Standard, June 22,
2015, http://www.weeklystandard.com/articles/you-will-be-assimilated_969581.
html?page=3.
52. Obergefell v. Hodges, Opinion of the court at 19.
53. Reynolds v. U.S., 98 U.S. 145 (1878) at 164.
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particular protections that will be afforded to citizens harboring religious reservations to same-sex marriage—is framed entirely in terms
of the cultivation of religious opinions:
[I]t must be emphasized that religions, and those who adhere to religious
doctrines, may continue to advocate with utmost, sincere conviction that,
by divine precepts, same-sex marriage should not be condoned. The First
Amendment ensures that religious organizations and persons are given
proper protection as they seek to teach the principles that are so fulfilling
and so central to their lives and faiths, and to their own deep aspirations
to continue the family structure they have long revered.54
Kennedy’s articulation of the First Amendment’s Free Exercise Clause
affords a robust protection to those seeking to adhere to, to advocate,
and to teach their beliefs. However, as Roberts chides in his dissent,
this formulation of free exercise remains silent on the question of
how—or whether—traditional marriage advocates will be protected
in the event that they demand to translate these beliefs into particular
actions. “The First Amendment,” Roberts reminds us, guarantees
“the freedom to ‘exercise’ religion. Ominously, this is not a word the
majority uses.”55
Hard questions arise when people of faith exercise religion in a way that may
seems to conflict with the new right to same-sex marriage—when, for
example, a religious college provides housing only to opposite-sex married
couples, or a religious adoption agency declines to place children with
same-sex married couples. . . . There is little doubt that these and similar
questions will soon be before this Court. Unfortunately, people of faith can
take little comfort in the treatment they receive from the majority today.56
The construction of religion as a belief-centered phenomenon proves
indispensible to Obergefell’s quick dismissal of the fundamental—
perhaps irreconcilable—tension between the First and Fourteenth
Amendments: it presumes a distinction between “religion” and particular political expressions of religion, and it is this distinction that
allows the court’s majority to easily ignore the fraught question of
exactly how lawmakers will accommodate religious actions that
violate the values of fairness and dignity enshrined in the Fourteenth
Amendment.
Secular argumentation of the sort that I have traced here and in my
previous article is by no means directly responsible for the “religion
as belief” formulation that Kennedy offers up in Obergefell; rather,
this is a construct that scholars of religion trace back to at least the
Protestant Reformation and the early-modern political projects that
54. Obergefell v. Hodges, Opinion of the court at 26.
55. Obergefell v. Hodges, Roberts dissenting at 28 (in original).
56. Ibid.
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arose in its wake.57 Indeed, this construct may be as old as Christianity itself.58 However, the secular arguments that Bursch and his fellow
amicus authors hazard in Obergefell are both a symptom and a propagator of this construct of religion: this brand of argumentation is, as
we have seen, driven by the premise that religion is delineable from
other important realms of human life—the realm of political policymaking, for example, and the realm of empirical knowledge production—and Obergefell’s secular argumentation serves, in turn, to
re-entrench this very premise. Bursch’s ready insistence in his oral
argument that religion can be bracketed from the central tenets of traditional marriage could hardly serve as a clearer manifestation of the
idea that religion can be retracted from the legal debate over same-sex
marriage with relative ease and minimal hindrance to adherents. By
no means does this amount to a claim that those with a religious aversion to same-sex marriage should be relegated to the realm of belief;
rather, as we have seen, the states’ rights logic at the heart of Obergefell proposes precisely the opposite of a privatized right to belief. Yet,
traditional marriage advocates’ repeated willingness to meet the
courtroom demand that religion be cordoned off from the empirical
realities of this issue—cordoned off from its central biological, socialscientific, and legal facts—gives the court no reason to take anything
other than a “minimalist” approach to traditional marriage advocates’
religious objections: an approach that envisions religion as and more
or less cleanly separable from the realm of secular law and politics,
and thus basically confinable to “[a] set of (chiefly metaphysical) concerns.”59 In the majority opinion, Kennedy obligingly hands down a
vision of free exercise protection that extols the importance of religious belief while simultaneously ignoring the politically-unruly
realm of religious action. In so doing, he helps to render the actual
source of future free exercise conflicts invisible to the American public.
Conclusion
None of these observations about the logic of Obergefell are intended
to imply that the court’s majority acted unilaterally in its effacement
57. See, for example, J. Z. Smith, Relating Religion: Essays in the Study of Religion
(Chicago: The University of Chicago Press, 2004), 179 – 96; Phillip E. Hammond,
David W. Machacek, and Eric Michael Mazur, Religion on Trial: How Supreme
Court Trends Threaten Freedom of Conscience in America (New York: AltMira
Press, 2004), 45– 67; Winnifred Fallers Sullivan, The Impossibility of Religious
Freedom (Princeton and Oxford: Princeton University Press, 2005), 3 – 9.
58. Charles Taylor, “The Great Disembedding,” in his Modern Social Imaginaries
(Durham, NC: Duke University Press, 2003), 49– 68.
59. Bruce Lincoln, Holy Terrors: Thinking about Religion after September 11
(Chicago: University of Chicago Press, 2002), 5.
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of some of the more complex religious issues at stake in the debate
over same-sex marriage. We have seen that traditional marriage advocates such as Bursch have played a consistent role in furthering the
presumption that religion can be neatly bracketed from the core
issues in the debate over same-sex marriage; such is the very nature
of the secular argumentation that he and others have offered up in
their efforts to refute the accusation that the traditional marriage
argument hinges on (legally impermissible) religious claims. More
broadly, none of my observations are intended to call into question
the legitimacy of a political system that demands secular argumentation from its citizens in the first place. After all, as I and many others
have argued, the mandate that citizens make an effort to translate
their policy preferences into a language accessible to all other citizens
is arguably a keystone of a political system capable of cultivating both
pluralism and fairness—a political system capable, in the words of
Jürgen Habermas, of striking a balance between “a positive liberty
to practice a religion of one’s own and the negative liberty to remain
spared from the religious practices of others.”60 An understanding
of the phenomenon of secular argumentation, however, affords valuable
insight into the burden that such a system creates for citizens of a particular religious sensibility. Obergefell presents a striking, precedentsetting demonstration of the manner in which our legal system all but
compels certain citizens to purge their arguments of religious content
and then rewards them with only the most superficial consideration of
the deep-seated convictions that have brought them into political conflict in the first place. That the respondents in Obergefell wrestled with
such a burden in their endeavor to meet the demands of our legal
system is indubitable, and one need not be a supporter of traditional
marriage or even of the dissenting justices’ particular vision of federalism to take this burden seriously.
Assuming that one is sympathetic to this problem, is there a solution to be proposed? In an amicus brief submitted to the court in
Obergefell, Douglas Laycock and a cohort of colleagues ultimately
press a claim for affording a generous berth to religious objectors’
demands for free exercise exemptions from laws and services associated with same-sex marriage. Laycock et al. propose this solution as
the only means to fairly address the fact that, Bursch’s claims to the
contrary, for many Americans there is ultimately no way to coherently
separate the religious and the civic aspects of same-sex marriage.
Laycock et al. forewarn the court that
60. Habermas, “Religion in the Public Sphere,” European Journal of Philosophy 14,
no. 1 (2006): 1 – 25, 4. See also Reinbold, “Sacred Institutions,” 264, in which I
invoke the very similar concern articulated by John Rawls in Political Liberalism
and other texts.
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[m]any of the appellate courts that have held marriage discrimination
unconstitutional have carefully explained that they are changing only civil
marriage and not religious marriage. But the explanation has done little
to assuage religious objections. In part this is because the culture [of traditional marriage advocacy] often fails to make the distinction: the historical
intertwining of religious and legal norms continues to affect contemporary
attitudes. And as we have explained, those who oppose same-sex marriage
on religious grounds understand civil marriage to rest on the foundation of
religious marriage. On this view, a civil marriage that departs too radically
from the foundation of religious marriage is simply not a marriage. To
treat it as though it were a marriage, for many religious organizations and
believers, is to violate fundamental religious commitments. And when
the inevitable lawsuits come, those charging churches and synagogues
with discrimination will also be conflating civil marriage and religious
marriage.61
Ultimately, Laycock asserts, “it is inadequate to simply tell the religious organization being sued for discrimination that it is being
forced to facilitate only a civil act, and not a religious one.”62 The
Obergefell opinion, as we have seen, lays the foundation for precisely
such a misapprehension: it leaves its audience with the impression
that a distinction between the civil and the religious is not only feasible but also central to the adjudication of future free exercise claims,
and it thereby sets up religious objectors for failures well beyond the
defeat that they have now suffered in this particular case. Although I
have asserted that Bursch and his ilk bear no small responsibility in
this situation, Laycock’s brief clarifies the manner in which the
court bears a certain responsibility as well:
Of course the Court cannot render advisory opinions on specific cases, but it
should indicate that it understands the range of religious-liberty implications that will have to be addressed. The issues are judicially manageable,
but this Court must acknowledge their existence, so that lower courts and
legislatures will take them seriously when they arise in the wake of this
Court’s decision.63
It is not at all clear from the language of Obergefell that the court has
lived up to this charge.
With their admonition to the court, Laycock and his colleagues
broach a broader truth about the “opacity” of the relationship
between religion and law today—a relationship that frequently presumes that the tenets and mechanisms of secular law are “unproblematic” and eminently equipped to adjudicate religious conflicts
61. Brief for Douglas Laycock, Thomas C. Berg, David Blankenhorn, Marie
A. Failinger, and Edward McGlynn Gaffney, as Amici Curiae, 23-24, Obergefell
v. Hodges, 576 U.S. ___ (2015), 23– 24.
62. Ibid., 24.
63. Ibid., 20.
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to the satisfaction of all reasonable citizens.64 While the ongoing
decline in Americans’ opposition to same-sex marriage gives little
reason to imagine that the adjudication of post-Obergefell religious
freedom claims will be disruptive in any practical sense for most citizens, we should make no mistake about the manner in which Obergefell itself nevertheless further entrenches this deep-seated opacity
between religion and law. Ultimately, same-sex marriage is a phenomenon that stubbornly belies the widespread presumption that our
courts can settle contentious religious issues without encumbering
particular citizens with what Habermas calls “an asymmetrical
burden.”65 In the face of this landmark moment in the legal navigation of same-sex marriage, I would argue that the time is ripe to
think seriously about certain practical compromises that might be
made on both the winning and the losing sides of the Obergefell
case. As Justice Robert Jackson admonished in West Virginia State
Board of Education v. Barnette (1943) in a statement that has been
repeated many times by the court, “freedom to differ is not limited
to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things
that touch the heart of the existing order.”66 Faced with a population
of citizens who have been handed a resounding defeat in their
endeavors to play by the rules of courtroom argumentation and
who will have no choice but to remove themselves to the realm of
free exercise exemption claims, the victors in the national debate
over same-sex marriage should endeavor, in the spirit of Jackson’s
particularly challenging formulation of freedom, to be as generous
as they possibly can in their conferral of exemptions.
64. Sullivan, The Impossibility of Religious Freedom, 10. See also Reinbold, “Sacred
Institutions,” 267.
65. Habermas, “Religion in the Public Sphere,” 11.
66. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) at 642.
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