Monday, June 29, 2015

Obergefell and the End of Religious Reasons for Lawmaking

Nelson Tebbe

Micah Schwartzman, Richard Schragger, and Nelson Tebbe

At Religion & Politics, the online publication of the Danforth Center on Religion and Politics at Washington University in Saint Louis, we argue that Obergefell put an end to exclusive reliance on religious reasons for laws that touch on basic rights. Here are the first few paragraphs:
"In Obergefell v. Hodges, marriage equality for same-sex couples became the law of the land. In the wake of the decision on Friday, focus has intensified on religious freedom for traditionalists. Few of the questions about religious accommodation are novel—they had been playing out in the states for some time. Yet the decision did have important ramifications for the relationship between religion and government in the United States, and it does mark the formal beginning of a new phase in the so-called culture wars. 
The most significant impact of the Obergefell decision for the relationship between religion and government is that it put an end to lawmaking solely on the basis of religious reasons. From the beginning, the only real basis for excluding same-sex couples from civil marriage was religious. At the oral argument in the Supreme Court, as in lower courts, the states struggled to justify marriage exclusion in terms that all citizens could understand. Their theory that expanding civil marriage would weaken a conception of marriage linked to procreation, and thereby lead opposite-sex couples to remain unmarried, was nonsensical. In the Obergefell opinion, the Court called it “counterintuitive.” 
So when the Court struck down exclusions of same-sex couples from civil marriage, it implicitly—but clearly—rejected the idea that such a law could be based on religious reasons alone, without understandable secular aims. Those justifications could not suffice to justify discrimination with respect to a basic freedom like the ability to marry."
The full article is available here.

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