^ Justice Alito : on the question of religion and marriage in a same-sex context, dissenting from majority in Obergkefell case

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Justice Samuel Alito wrote most serious dissent from Friday’s majority opinion in the Obergkefell case that granted same-sex marriage full civil rights nationwide. The paragraphs that I now quote from his dissent (plus portions of it as restated from a news report) deserve a response a serious as his opinion. Alito wrote :

“The majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

He argued that states should have been allowed to legalize same-sex marriage on their own timetable, and with possible allowances for religious people to discriminate against same-sex couples.

The majority’s rush to “invent a new right” and extend equal protection to same-sex couples had undermined the foundational rule of law, Alito warned.

“By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas,” Alito wrote. “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.”

Alito has summed up quite accurately the views of serious opponents of same-sex marriage. Same-sex marriage is, in fact, a new thing. Only about twenty years ago did it begin to be seriously argued for; the first legalization — in Massachusetts — took place in 2003. Until 20 years ago, those who used the term “marriage” envisioned a man and a  woman. (Polygamy was known, but as a special, and usually rejected, case.) The change in marriage’s meaning has in fact taken place rapidly.

Alito empathizes with those who do not accept the change in marriage’s meaning. Responding to Justice Kennedy’s majority opinion, he advances the objection by many religious people to the change.  And were the connection between marriage and religion, that both he and Kennedy make, true, Alito would be right to argue that those who object to same-sex marriage should be allowed to work out, at their own pace, the coming to terms : because the First Amendment does guaranteed the free exercise of religion, and we cannot make law that requires religious people to accept tenets that their faith does not sanction.

The proper response to Alito’s dissent is this : marriage is not a matter of religious precept.

That almost all religions sanction marriage does not mean that marriage is theirs. Marriage of one arrangement or another existed, and continues to exist, in almost every society, quite apart from religious precept. In America, a Governor or Lieutenant Governor can marry people. So can a justice of the peace. So can a city or town clerk. Even when marriages have been sanctioned by churches, that sanction is often more civil in nature than religious. For example, the bishops who sanctioned marriages in the Merovingian and Carolingian families in early Medieval France did so as kings’ officials — bishops were the only kings’ officials in that time when only clergy could read or write, and the duties they were called to perform were almost all acts of state — including leading armies into battle !

Most people who married in early Medieval Europe did so without benefit of any clergy; and marriage was always seen as a contract of finance and obligation. So it still is.

In no way does the Obergkefell ruling obligate any religious officer to perform a same sex marriage. Any more than any Supreme Court ruling can obligate a church official to perform a divorce if the faith at issue does not recognize divorce. Despite which, divorce is fully authorized in law in all states and statutory provisions govern it.

Alito ‘s dissent avoids the real issue : that some states have enacted religious precepts into their public law. This is the situation which Obergkefell rules upon. A state, after Obergekefell, cannot regulate marriage according to the precepts of a religion. The law of marriage must accord to the same principles as all American law – inckuding the law of divorce —  and pursuant to the Constitution and its civil rights protections.

Alito argues that the Obergkefell ruling may cause traditional religious people to be vilified for advancing the opposite policy. He is right to worry. Discussions involving religion readily lead to vilification, because religions purport to sanction or condemn people’s personal conduct. People rightly object intensely. Nobody likes having his or her business minded by others. I understand Alito’s worry that people who cannot separate marriage from religion will be deeply troubled and have difficulty figuring out what acts they can do and cannot do when confronted with a same  sex marriage. The issue has already arisen, and it will continuer to arise, in commercial arenas in particular.

But that is an issue for another day. For right now, it is sufficient to understand that Obergkefelll stands for the principle that marriage is not perforce an act of religion.

—- Mike Freedberrg / Here and Sphere