Adam Sunny Flanders

I joined millions of Americans yesterday in celebrating the Supreme Court’s decision in Obergefell v. Hodges. For those of us at Pride, there was even more reason for celebration. The timing of the court’s ruling was perfect, falling within the National LGBT Pride Month and precisely on the anniversary of Lawrence v. Texas (2003, striking down sodomy laws) and United States v. Windsor (2013, invalidating DOMA and giving federal recognition to same-sex marriages).

My company led the parade in Bangor as a co-sponsor of the event. We had beautiful weather and a great turnout. In addition to the usual rainbows and glitter, I saw many #lovewins banners celebrating the Obergefell decision. It was a day for our community to truly come together and reflect on our achievements and consider what next steps are needed, such as prohibiting employment discrimination across the nation.

I had time today to read the full 103-page decision and take notes. There is a lot of rhetoric on both sides of the argument and it can be difficult to discern the central issue. To me, the core question seems to revolve around whether marriage is a right or privilege, and whether access to marriage is guaranteed by the US Constitution. Even more fundamentally, and perhaps most clearly stated in Justice Clarence Thomas’s dissent, does granting access to same-sex marriage, as considered in light of the Fourteenth Amendment, offer freedom (liberty) from government intrusion or freedom to a government privilege?

“Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits.”

~Justice Clarence Thomas, dissenting

The majority opinion and dissents appear to be divided primarily along this distinction and I felt they both made reasonable arguments, although I believe the majority correctly found that prohibiting bans on same-sex marriage represents a freedom from government intrusion rather than establishing a new right.

“States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle…The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”

~Justice Anthony Kennedy, writing for the majority

Over the past decade or longer, a majority of states have made targeted efforts toward excluding same-sex couples from the civil institution of marriage. At the level of the legislature and popular vote, most of them succeeded. These actions represented a course of action that included identifying a minority class of Americans and choosing to write discrimination into state laws. Many of these laws contained within them true examples of animus, sometimes even being accompanied by laws forbidding the creation of any anti-discrimination laws based on sexual orientation. Such actions were ultimately their undoing in Obergefell because they expanded into the realm of government intrusion. State prohibitions against same-sex marriage were no longer passive obstructions to gay and lesbian couples. Instead, they became discriminatory statutes written into the law with a very specific intent.

Marriage has become so central to our society, with all its associated benefits and rights, it is hard to see how the respondents could make any argument as to why it should be restricted to heterosexual couples. The majority opinion found, “The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe.” The two main “harms” the respondents wish to avoid are the undermining of procreation and child-rearing, and threats to religious freedom. I find the former arguments to be implausible, even absurd. The oral arguments do well to dispel any suggestion that same-sex marriage would somehow cause harm to children or traditional family structure, so I won’t address them here.

As for religious freedom, it’s true that individuals representing government institutions and other civil organizations will be required to acknowledge and, where appropriate, participate in same-sex marriages and the associated rights of married same-sex couples. It is the nature of this country and our Constitution that we do not pass laws respecting any religion, nor do we abridge the free exercise thereof. The only exception is where fundamental civil rights and protections conflict with the practice of religion. We would not, for example, allow a fundamentalist Christian to sell his daughter into slavery (Exodus 21:7), even though he may say that such prohibitions violate his religious liberty. That may be an extreme example, but we have already seen modern examples of religious leaders attempting to circumvent other civil rights by asserting their would-be religious liberty. I had hoped the majority opinion would clearly establish heightened scrutiny for sexual orientation, but it was somewhat ambiguous in that respect. It nonetheless provides a strong precedent for future litigation and states in no uncertain terms that “sexual orientation is both a normal expression of human sexuality and immutable.”

Granted, no purely religious leader or organization should be forced to recognize or participate in a ceremony or other action that would violate their beliefs. That said, there is a distinction between the Church (religious) and State (civil) that the respondents often fail to recognize. That distinction is too often blurred, usually by opponents of LGBT rights. I myself have seen local churches in Maine use their congregations, church property, and even their billboards to explicitly encourage a certain result in civil law. By interfering with civil discourse, churches and religious organizations violate the separation of Church and State and by their own hand, make themselves vulnerable to state interference.

The reality is that protections for sexual orientation, just as with race, gender, ethnicity, and so on, trump those of religious freedom. All protected classifications are immutable and are not subject to choice, with the exception of one – religion. Religion is always a choice, it can represent any belief or position imaginable, and can change any time at the whim of the individual. The recent conflicts concerning marriage equality should be viewed as a coincidence of the times and the current demographic of the US.

“The nature of injustice is that we may not always see it in our own times.”

~Obergefell v. Hodges, majority opinion

Our laws are secular and any freedoms, even those contained within the First Amendment, come with limitations. The respondents in Obergefell expressed concerns about religious freedom and the majority opinion even offers some relief in that respect, the latter to which I do not object. However, I’m not going to pander to the respondent’s arguments; those who oppose equal rights under the law should be worried. I’m sure slave owners worried when African Americans began realizing new freedoms, as did some men when women began asserting their rights as equal persons. Just as we see today, religion at that time was used to justify unequal treatment under the law. And just as then, modern claims to “religious freedom” cannot suffice to maintain such practices. Most rational Americans no longer tolerate those religious justifications, so why should we tolerate similar justifications used to discriminate against gay and lesbian people? The highest power in this nation has declared that we won’t tolerate discrimination and offers us a clear path going forward. Justice Anthony Kennedy, writing for the majority:

“These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.

“This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate…Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”

Thank you to the plaintiffs, their attorneys, especially Mary Bonauto, and all the other individuals who came together to ensure our nation started on the right path and achieved the dream of marriage equality. Although there is still work to be done, I am so proud of how far we have come and so grateful to be a part of this movement at a time in our history when we are realizing new freedoms and where a majority of Americans support those freedoms. Congratulations and Happy Pride!