It’s been a few weeks since the Hobby Lobby decision from the Supreme Court. What has struck me about this decision is the almost complete lack of positive recognition in the media or by almost anyone. This is a significant decision in the religious freedom arena yet it was received with almost unanimous disdain from any commentators. It has been decried as yet another step on the road to a theocracy, another blow to “reproductive rights,” another slap in the face to women in general.
I contrast this lack of concern except in the most negative sense with what happens any time gay rights are mentioned. Anyone who publicly comes out as gay is heralded as a hero/heroine. Any court case is lauded as a step toward equality (note that all the court cases strike down any law that prohibits marriages except between men and women).
Gay marriage will become the law of the land. That’s because marriage has been held to be a fundamental right and the only way a state or governmental entity can infringe on a fundamental right is to demonstrate a compelling need to do so. No state can do that without resorting to arguments based on morality, which is strictly forbidden. Discussions of what is moral have no place in the legal system anymore. Morality, it is argued, is a vestige of various religious beliefs and religion cannot be brought into government under the First Amendment, at least as the First Amendment has been interpreted by the Supremes over the years. Without morality as an argument states can show no compelling need to restrict marriage. The fact that 98% of the state’s citizenry support such laws is of no concern.
Religious freedom, particularly Christian religious freedom, is being challenged at almost every turn. I foresee the day when arguments will be made that the First Amendment allows people to believe whatever they want but the practice of that belief can be constrained in the name of tolerance and unity. After all, that very argument carried the day in Reynolds v. United States, the 1878 case that held that the federal government could enforce its anti-polygamy laws in Utah even though the Mormon religion taught that it was man’s duty to have more than one wife. It’s interesting to note that the Supreme Court there found polygamy to be odious and repugnant on moral grounds. The opinion of the court says in part:
From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.
The Court said that while marriage is by its nature sacred, it remains a civil contract and can be regulated by law. That part of the decision has gone the way of the dodo bird. Can you imagine making the argument that “an exceptional colony of gay persons under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether gay or straight shall be the law of social life under its dominion?” Anyone making making a similar statement would be in danger of his or her life today.
But the underlying premise, that religious liberty can be restrained, is the holding of the case and remains the law. Perhaps one day someone will try to prohibit missionaries of any religion from proselytizing on the grounds that espousing one belief system over another is a form of hate speech.
Meanwhile, the Hobby Lobby case stands as a beacon signifying that religious liberty isn’t quite dead yet.