Misunderstanding Religious Freedom

It was refreshing to read New York Times column responding to the recent–and I must say, weird and troubling–ruminations on same-sex marriage issued by Clarence Thomas and Samuel Alito.

The reason I label these “opinions” weird is that they were not dissents, not even concurrences. They were peevish outbursts–not far removed from “get off my lawn” explosions by cranky old guys. I’m unaware of other instances in which Supreme Court Justices used a unanimous and otherwise predictable decision as an opportunity to simply gripe that the world wasn’t going their way.

As David Von Drehle wrote,

It was an odd document, not a dissent; just a four-page grumble about matters that may someday be a problem depending on the facts of unknown future cases. The justices might consider woodworking, because, from the looks of this, they don’t have enough to keep them busy. The statement, which carries no legal weight, is essentially a cry from the heart on behalf of Americans whose religious views condemn same-sex marriage. Fair enough: The freedom to hold beliefs different from those of the mainstream is a cherished aspect of American liberty. But the statement crosses into sophistry by suggesting that religious liberties are somehow infringed if they aren’t privileged above the civil law.

And that, dear readers, is the crux of the matter. The piteous complaints that meet any effort to ensure the civic equality–note the word civic–of Americans who do not conform to their religious beliefs are based upon their conviction that they (and only they) are in possession of Truth, that they (and only they) know God’s Will, and that other citizens should therefore be forced to comply with their beliefs and their bigotries.

Von Drehle notes that the Justices offer no new basis for their opposition: he references Thomas’ 2015 argument that same-sex marriage is not mentioned in the Constitution– and points our the obvious: opposite-sex marriage isn’t mentioned there, either.

Thomas and Alito engage in a profoundly damaging legal error: religious freedom is not the right to impose some people’s beliefs on other citizens.

Far too many Americans define “freedom” as “my right to do what I want, no matter how harmful that may be to my fellow Americans.” We see that distortion in the refusal of “freedom fighters” to wear masks to protect the health of their neighbors.

Our legal system was profoundly influenced by what is sometimes called the “libertarian construct.” That construct provides that we each have the right to “self government”–to live our lives as we see fit, to worship or not, to form and exchange opinions, to go about our business free of official constraint– so long as we do not thereby harm the person or property of a non-consenting other, and so long as we grant an equal right to others.

There are all kinds of good-faith differences of opinion about the nature of the harms that justify government interventions–second-hand smoke? Seat belts? There is no such “gray area” when it comes to our obligation to extend “an equal right to others.”

When the issue is religious liberty, Von Drehle gets it right, and the Justices get it wrong.

By prohibiting establishment of a state religion, the Constitution explicitly bars “courts and governments” from preferring one set of religious views over any other set — or over nonreligious views…

Nor does religious freedom confer immunity from criticism. Religious freedom by its nature implies robust disagreement over strongly held values. Imprecations will be hurled, alas. Names will be called. Devout Christians should appreciate this; indeed, we are called blessed when we’re reviled for the sake of our faith. Furthermore, we’re taught to distinguish between civil and religious authority, and to render due respect to both.

Churches and other religious establishments rightly have certain protections from laws that might compel them to violate their beliefs while conducting their own business. It’s dangerous to confuse that safe zone with a general power to flout the law.

I say AMEN.


  1. The church nuts should be free to be what they are. They should NOT be doing it with public money. NO public money for church schools for example. NO tax exemption for their church business. NO tax exemption for their expensive property holdings. FREEDOM to be treated like every other business. And they ARE a big business. The tax exemption they enjoy appears to be government endorsement.

  2. What is missing these days in every discussion about FREEEDOM is the idea and ideals of RESPONSIBILITY. Apparently that concept has not been taught for the past few decades thus giving the world the most selfish, irresponsible, violent, and uncouth society in American history.

  3. There are those who use a “megafone” to bark their grievances and differences. Then there are the vast majority who quietly each day teach and lead by example, enduring values of character: respect, responsibility, honesty and caring. Their voices are soft and strong. AND … they just as quietly vote with reasonable confidence in the system to right the inbalance of lowest common denominators with the loudest bully pulpit. We are not an island of misfits. I believe we are a nation in the final analysis that yearns for a free republic governed by responsible leaders with mental dexterity, intestinal fortitude, and yes, spiritual maturity.

  4. “Nor does religious freedom confer immunity from criticism.” This statement, short that it is, depicts what I find true of so many who want to fly their flag and walk across any land without common sense restrictions. Sunday night, a religious group held an event in Nashville and seemed to believe that they have the right to gather whenever and wherever they choose to do so.

  5. In this particular case, I believe the justices were tipping their hat regarding things to come with the addition of a Koch-backed religious zealot to the SCOTUS. It’s not a coincidence that ACB comes from a Koch entrenched state like Indiana, where Mike Pence was in a leadership role.

    The other reason for her rushed confirmation is to rule against environmental legislation against our Pollution Corporations and rule on the fastly approaching election. The Oligarchs want a champion who will take sides–not be fair and balanced.

    All of you make valid points about religion’s encroachment on the individual’s rights, but the Oligarchs want a justice, and a court, who will interpret laws to meet their needs. They don’t care about lofty philosophical retorts. They only care about getting what they want. They have the most gold, so making the rules is their call. 😉

    Mind you, the Oligarchs might not have any morality of their own and consider the faithful weak-minded, but they need their votes, so the use of propaganda is used abundantly.

    Open a Twitter account and only follow Ted Cruz. Within a few days of each other, Ted accused Biden and democrats of “packing the courts.” He was aghast that Biden wouldn’t answer that question. Apparently, a democratic strategist used another term besides “packing,” causing Ted to issue more propaganda on Fox News about them changing the word because “he caught them.”

    It’s really priceless to watch and read these numbnuts. The use of spin and propaganda has evolved into an entire philosophy of its own. Trump’s kids use it also. It’s where ignorance and spin come together. Words can’t describe it — only emoticons come close.


  6. Thomas and Alito have ALWAYS been peevish and right-wing, Federalist Society purists who think not a single thought about the breadth of their actual responsibilities. They, like the Department of Justice, are supposed to represent the law and the Constitution, not some ideological “opinion”.

    But, as with most Republican appointees to courts and offices, they toe the line of white dominance and supremacy; yes, I know Thomas isn’t white, but he thinks white. His wife is a white screamer at the extreme right of Republican politics. Do you suppose she helps form Thomas’ “opinions”? Oh, and both Bushes are responsible for anointing these two clowns to the court. Both of those Bushes are from Texas, with the younger being the seat warmer governor there. Well, of course, they are Texas Republicans after all.

    The entire Texas state office appointments are ALL Republicans who were put there by Bush, Perry and Abbott. And look at the fine, backward mess Texas politics and civil discord they have there. Their schools are among the lowest achieving in the nation. Fewer people in Texas have health care than anywhere else. The roads and highways, once the jewel of the nation are crumbling. The list goes on.

    I’ve said, ad nauseam, that Republicans are not fit, nor are they intending to govern for their constituents. Their entire agenda is dedicated to serving their rich donors and to bilk the people for everything they can get away with.

  7. “When the issue is religious liberty, Von Drehle gets it right, and the Justices get it wrong.”

    As the numbers of Catholics in the Supreme Court increased; so did the loss of religious freedom of others begin to increase. The five are gradually eating away at Roe v. Wade and our entire health care system to control their denying birth control and anti-abortion religious belief via weakening the ACA, Threats to the established right to same-sex marriage is on the table again and soon Betsy DeVos’ Department of Education system, “God’s Kingdom” will come to fruition unless Trump, McConnell and their cronies are not removed. SCOTUS has been “packed” with that majority of Catholics and will only become stronger with the appointment of Amy Cony Barrett. Her religious/legal history in the state of Indiana is tightly connected to Pence; does anyone doubt she will be seated before November 3rd?

    They do NOT “misunderstand” religious freedom; they are simply denying the religious freedom of others by their majority votes in a power drive to control the country by their religious rules. Pence accomplished this in Indiana before moving on to his lofty position of Vice President where he campaigned on his promise to take our laws to the federal level. No misunderstanding there.

  8. Norris, i agree. The mess we are in now (although complicated) has been coming for a long time. As usual unrest spawns extremists and those groups including religious and power based opportunists have free rein. Those at the top have taken this perfect storm and planned their steps beautifully. And the violence is right at the surface waiting to erupt. All we can do now is vote and hope that still has weight. If the powers that be have been thorough we will be living in a dictatorship very soon. Theresa Bowers you are right. The civic education of our citizenry fell through the cracks somewhere along the lines and now we are being held hostage by those who educated themselves on how to use ignorance and complacency to destroy this experiment.

  9. From another Blog:

    By W.J. Astore

    This snippet just showed up in my email (courtesy of the Boston Globe):

    Supreme Court nominee Amy Coney Barrett declared Monday that Americans “deserve an independent Supreme Court that interprets our Constitution and laws as they are written,” encapsulating her conservative approach to the law that has Republicans excited about the prospect of her taking the place of the late Justice Ruth Bader Ginsburg before Election Day.

    Now, I know this is coded talk. The idea of a close and literal reading of the U.S. Constitution and related laws is meant to tell conservatives that she is not an activist, that she is not liberal in any way. But it also means that she’s mainly, in a bizarre way, a clerk rather than a judge — if her statement was meant to be the truth, the whole truth, and nothing but the truth. But it isn’t.

    Barrett is spouting half-truths, since conservative judges are just as activist as their liberal counterparts on the bench. They simply disguise their activism using terms like literalism, which is “strict” and “conservative” and allegedly in keeping with what the Founders intended, as if we can be mind-readers. And even if we could be mind-readers, hasn’t the world changed a lot in roughly 250 years?

    Look, I’m a historian, not a lawyer. I’m no expert on judging the law, but I can view the law in historical terms. And in those terms the law is organic, not static, as is our understanding of it. Put differently, the law should be made and remade for us, not we for the law. Because we’re human, we’re imperfect, the societies we create are imperfect, and so too are the laws we create.

    Our goal should always be to form a more perfect union, to grow in understanding and compassion. Such is also true of the law. If all these judges do is to issue rulings simply on what is written in the documents before them, why do we even need a Supreme Court?

    A static system of laws based on the writings of men who lived 250 years ago is not only unwise: it’s inhuman. Even the law is dead in America.

  10. Religious Freedom Restoration is one of those phrases right out of Orwell’s 1984. It should be: Anti-Establishment Clause Establishment.

    Speaking of 1984, I’m reading it again after 55 years and you should too. It serves as a great description of what Trump’s 2nd-nth terms will look like. I wish I was joking.

  11. Patrick; after Pence enacted the Religious Freedom Restoration Act (RFRA) as law in Indiana, it was discovered that only 10 areas of the state had specific law to protect the rights of LGBTQs and Indianapolis was NOT one of them. Republican Mayor Ballard began receiving messages from organizations who had held conferences and annual meetings here for many years were going to find anther venue. Ballard quickly got the law passed in Indianapolis/Marion County to save the tourist dollars which would have been lost.

    It is always FOLLOW THE MONEY!

  12. There was a REASON our founders and subsequent courts wanted freedom of and from religion. They saw, first hand, what a nightmare religion created in European governments – mostly resulting in stupid wars.

    But no! Our “conservatives” want religion in the forefront of our governing ethos. They just don’t get it. Religious dogma is the invention of humans. There is still not a shred of evidence that indicates anything closely resembling divine intervention. People who cling to religion as their salvation are the weakest among us. Thomas, his wife and the spewings of Barrett define that statement.

  13. ” Power corrupts and absolute power corrupts absolutely.”
    John Dalberg-Acton. It seems to me that if the SCOTUS is packed with conservatives or liberals, it is prone to corruption
    I wonder what Justice Roberts thinks of all this.

    Yes JoAnn, people have forgotten that with each of our freedoms, comes responsiblity. That’s why I follow the Buddhist concept of right speech instead of free speech. We should all be careful with our words This is something the POTUS has never understood.

    Since the religous right have become politicized, their churches should be taxed. But what about the churches that do NOT violate the rule that they not tell their congregation how to vote? And if we are going to tax churches, then we should tax the sports leagues, all of them. They seem to have large congregations that never go to church.

    In the meantime, I am hoping for a blue wave so that legislation can be created to ensure the civil rights of those of us in the LGBTQ community. If I were getting married, I would get a cake etc. at gay businesses or those that are straight allies. Perhaps the best way to impact those who use their religious views to enact their bigotry is to boycott them ( or should I say girlcott?).

    If Joe Biden wants to increase the # of justices to balance the court so that we can ensure it is nonpartisan, I will support it.

    If we are going to really have a separation of church and state, then perhaps the incoming president should not take an oath on the Bible. We have never had total separation of religion and government. All of our representatives make decisions, in part, on their spiritual, religous values.

    Those with “originalist” interpretations of the Constitution remind me of fundamentalist Christians who read the Bible as if it is the literal truth. Our founders were anything but perfect. Some were slave owners. The language they used never referred to the female gender. Women did not have the right to vote. And yet, it seems to me that it is the conservatives who have made money equal to free speech and who have decided that corporations are persons. To that I say, that’s not an originalist interpretation.

  14. If Justice Thomas wants to overturn Obergefell, which allows for same sex marriage, does he also want to overturn Loving, which allows for interracial marriage. Laws banning both same sex marriage and interracial marriage were supposedly based on Biblical references. Of course, if Loving is overturned, Ginny and Clarence Thomas’s marriage would be null and void.

  15. Patrick,

    I’m also rereading 1984 and, as they say about the German sense of humor, it is no laughing matter.

    Sheila, you hit every important point that is worth making about today’s “…just-spoke-with God-and-he-says” bigots and the fantastical context they squirm around in. Unfortunately, this problem will not go away until enough people have the courage of their convictions to admit that they think that the notion of some man-like creature creating the universe is poppycock. We, like everyone, know a lot of cover-your-bets Christians who barely believe more than we do. For many centuries people with excellent minds and superior talents had no alternative other than to put them to work in the service of the church (that’s why there’s so much beautiful writing in the Bible, although it’s all fiction). Now we have alternatives. The absurdity and contradictions and hatred and bigotry in religion make it as antiquated as the Cro-Magnon man who probably invented it.

    A large portion of what every church believes is not only spiteful and harmful, but also proud of its exclusivity and its wickedness. In 2020 we are still having erudite conversations that have the intellectual value of the debate over how many angels can dance on the head of a pin. Almost all believers deplore almost all other believers who believe differently. Despite claims to the contrary no one has ever spoken with any form of deity. If there is a moral purpose for the universe(s), it has nothing to do with whose God is mightier or holier, or who has discovered the “right” God in the midst of all the “wrong” Gods. Until we stop kidding ourselves about how much we know about a subject in which everything is unknowable, we continue to be children trying to do good in a universe built on falsehoods compounded over the centuries. Shouldn’t we now abandon mysticism and admit that religion is a fiction-based business that has been of value mostly in developing solemn ways of performing funerals, some awesome architecture, and a lot of inspiring songs with mostly comedic lyrics, and a lot of memorable children’s stories? Is it a good thing for people to be told to recite what they are commanded to believe, as, for example, in the almost countless versions of the Nicene Creed?

    Truth, an alternative to commandments, could work for us. It should be given an opportunity. That opportunity will arise when the self-deception stops.

  16. “But the statement crosses into sophistry by suggesting that religious liberties are somehow infringed if they aren’t privileged above the civil law.”

    This is Scalia’s argument in Employment Division v. Smith. (1990). (That case involved Native Americans smoking peyote as part of a religious celebration.) He said the constitutional guarantee of religious freedom is subordinate to any statute of general application. That is so obviously wrong that Employment Division was at the time condemned by virtually every conservative and liberal legal organization (including the ACLU) and nearly every Republican and Democrat in Congress. It led to Congress and some 30 or 31 states adopting Religious Freedom Restoration Acts, by statute or judicial decision.

    Von Drehle, and Scalia in Employment Division, could not be more wrong. Religious liberties are privileged above the civil law exactly because they are protected by the Constitution. It is elementary that rights which spring from the constitutional guarantees are superior to those that arise by statute. The Employment Division case effectively gutted the Free Exercise Clause, making it subordinate to any statute adopted by Congress or state legislatures, as long as those statutes apply to everyone. The danger is that the approach taken by Von Drehle and Scalia in Employment Division could easily be applied to other constitutional guarantees, lowering those constitutional protections to the level of ordinary statutes.

    The fact is I think a lot of people like that statutes can limit objectionable religious practices than negatively impact the rights of others and they reason backwards from that. That’s a dangerous approach to take when deciding cases.

  17. I would assume that ACB believes in the literal interpretation of both the Constitution and the Bible. The reason that I disagree with both of those calls is called progress. The worlds that those two documents were written during could not have possibly envisioned today. So somehow they must be interpreted from the perspective of reality as it exists today without losing their original intent to guide human behavior.

    That leads to another point. Rules versus judgement. I have always tried to emphasize to anyone who desired to learn from me that the important consideration in anything subject to both rules and judgement is that rules are fixed in time and place and are written by other people for their own good. Judgement when it’s sound and considered by a well informed critical thinker is automatically updated to situations that couldn’t be foreseen. When seen from that perspective good judgement takes precedence over rules by others.

    Another consequence of my radical thinking is that as I have lived my life that way my only behavior that ran afoul of the law a couple of times was my driving at a speed reasonable and prudent under the conditions but above the limit imposed by the law without the benefit of judgement.

    From there my always wondering brain leads me to the conclusion that I would live about the same if there were no rules. They impose no objectionable limits on my freedom. But the news shows me that they are seen as restrictions on the freedom of some other people. Why? Their behavior is at the expense of, imposes on, the freedoms of other people. To me that’s poor judgement on their part. The law though can’t be opinion because breaking criminal law requires sanctions designed to teach better judgement about behavior and that’s why laws are needed.

    Civil law and bibical law are for criminals and sinners. Good judgement is its own reward.

    ACB and I are fundamentally different that way. She sees rules as though from her personal God. I see them as imperfect and instantly out of date attempts to define good judgement for the masses who were never taught how to exercise good judgement.

    I think that my way requires more from people because it accepts that whatever god may be we all suffer and benefit from free will. It’s the source of all of our troubles and all of our progress.

    I have benefited greatly over my life from progress. It employed me for one thing. It kept my insatiably curious brain occupied instead of being forced to memorize rules made by authoritarians around me to mold me into what primarily benefited them.

    I don’t see ACB and myself ever aligning.

  18. Patrick – When I first read 1984 I made a pact with myself to read it again every year, and I did, but broke my promise after a few years and only read it now on occasion. However, I strongly recommend that those who have not read it do so and those who have not read it for a while read it again. There are a lot of latter day Smiths out there in cult land who have succumbed to the wiles of Big Brother today, and while we may attribute that to a lack of civic education, the authoritarian effect of patriarchy and religion etc., it is real and we have to deal with it. The long term answer is, of course, education, but we may have no time for long term solutions since we may lose our democracy and means of solving the problem during the interim. To do > Remove Big Brother from power by electing Biden in order, among other things, to give us the time required to work on the problem, and then work on it, because those Smiths are still out there.

    It is not only religious beliefs per se that are involved in the church and state problem. It is also the patriarchial framework which supports it. How many popes and cardinals can you count who are women? Try zero. Historical accident? Way it always was, since Ugg Glugg the cave dweller? Perhaps, but we make history, history doesn’t make us, so it’s long past time to involve the other 50% of humanity in every human undertaking. Thus the founders excluded women and slaves from the political fray, and one of them when asked if non-property holders should vote, was incredulous while asking what possible interest a white man of age could have in who would represent him when he didn’t own property. Fortunately, we made history. Slavery has been abolished, women and the descendants of slaves now vote, as do tenants as well as landlords. Let’s make some more history on November 3 – and afterwards.

  19. Things not mentione in the Constitution:


    Electoral College–The concept of the presidential elector is certainly in the Constitution, but never is the group of people collectively referred to as “The Electoral College.” (Article 1, Section 2)

    Executive Orders
    Freedom of Expression

    God, Jesus, Creator, Maker, Lord, Christian, Methodist, Lutheran, Catholic, Babtist, Adventist, Evangelical, Bible, Good Book, Ten Commandments

    Presumption of Innocence
    It’s a free country
    Jury of Peers
    Life, Liberty, and the Pursuit of Happiness
    Martial Law
    Number of Justices in the Supreme Court
    Of the People, By the People, For the People
    Primary Elections
    Right to Privacy
    Right to Vote
    Separation of Church and State
    Pickup Truck
    Gated Community
    Leer Jet
    Professional Sports
    Trickle Down
    Machine, wrench, hammer, jack, screwdriver
    Blue colar
    Eighteen Wheeler
    Muscle car
    Medical tourism
    Right to curtains, throw-pillows, and nicknacks
    National parks

    Almost all those things we believe the Constitution specifically bars or permits are derived from but not found per se in the Constitution.

    What would we do without lawyers?

  20. I proofed above post and found the missing d in mentioned and corrected it, but the upload still left it out. I’m as faultless as Trump.

  21. “Von Drehle, and Scalia in Employment Division, could not be more wrong. Religious liberties are privileged above the civil law exactly because they are protected by the Constitution.”

    Paul K. Ogden: When the highest court in the land does not understand that “religious liberties” includes the religious liberties of ALL PEOPLE and imposes civil laws denying them to suit their own religious beliefs, my friends and I are no longer protected by the Constitution. This is what we are dealing with today. Regarding Amy Cony Barrett; was she telling the truth in the past about her total support of her own religious beliefs or are we to believe her telling us she will not overturn laws protecting us FROM her religious beliefs? Kavannaugh has already proven he lied during his hearings.

  22. Here’s another example of Christians’ misunderstanding. Some of them have argued that not being allowed to bully gay people (for example, kids in school, and sometimes to the point of suicide) infringes their right to religious freedom.

    This is horrific. Just typing it out makes me angry to the point that it affects me physiologically, like I’m facing down a physical threat to one of my children. Just as the article mentions, this is a case of having the rights issue completely backwards.

    The question for me is: Are they just stupid or ignorant, or do they simply not care about the rights of other people? I honestly want to know. The former would be pitiable and somewhat forgivable, but the latter is horrible and an incredible indictment of their religion.

  23. Let’s just be clear. These justices will follow whatever is convenient for them, based on whatever their interest is at the time. Scalia was no originalist when it didn’t suit him. Thomas doesn’t seem to know much more about the Constitution than 45 does, although I suspect he has at least read it. Alito is just a hapless hanger on waiting to see what the big boys want to do. Gorsuch seems to be the most reasonable conservative on the bench next to Roberts, who is most concerned about the reputation of the court under his leadership, which isn’t particularly good. I won’t even comment on Kavanaugh. He told us he was unfit at his hearing.

  24. Terry,
    “In 2020 we are still having erudite conversations that have the intellectual value of the debate over how many angels can dance on the head of a pin.”

    While Jehovas Witnesses, Nazarenes, and other religious groups ban dancing…apparently without regard to one’s status as an angel, or a dance floor as small as the head of a pin.

  25. John H; very simply they believe they are the only ones who are right, anyone who believes otherwise is wrong. And it always seems to be their views are religious beliefs and their religion is the one true religion.

    Roe v. Wade does not require women have abortions; it ALLOWS them to make that choice. The insurance coverage offered to employees by Hobby Lobby included birth control; it did not force their female employees to use it but ALLOWED them the option. I don’t know why this is impossible for people to understand the difference and sadly, too many of them are in our government and in the judicial system. And their numbers are growing. The same problem is again being brought before the public regarding LGBTQ rights; their orientation is NOT optional, it is their physical makeup as proven by medical science. Remember Matthew Shepard? And these are physical threats to our children, grandchildren, great-grandchildren and into their future. At this time there seems to be no escape from those who want to deny all of us our rights and we are not infringing on theirs.

  26. Dear Ms. Kennedy, I read your essays daily and continue to learn from them. But I am frequently snubbed up by your confusing use of the hyphen, which you also use in place of an em dash. It’s disconcerting when a reader has to pause midsentence to clarify the meaning of a statement. Yet you appear to be familiar with the em dash, for you use both here:

    “There are all kinds of good-faith differences of opinion about the nature of the harms that justify government interventions–second-hand smoke? Seat belts?”

    And here, for the first time I’ve seen one since I began reading you daily, you use an actual em dash:

    “…the Constitution explicitly bars “courts and governments” from preferring one set of religious views over any other set — or over nonreligious views…”

    Forgive me for trivializing, but these little stumbles interrupt the flow of a paragraph and that’s annoying. I can’t help but notice the trivial — I think it’s in my DNA!

  27. Paul Ogden:
    I think there are “slippery slopes” on both sides of the argument when it comes down to the “Free Exercise Clause” of the First Amendment. But stretching it down to having a Constitutional right not to be offended by the legal behavior or exercise of rights of other citizens that isn’t directly impacting or harming you personally seems to have already slipped all the way down the slope and is at the bottom of the hill.

    The issue being presented to SCOTUS by Kim Davis, the Kentucky County Court Clerk who refused to issue a marriage license to two men, which Thomas and Alito voted with the majority not to hear — but then filed a strange, free-standing rumination about the alleged assaults on religious freedoms, did not involve a situation where the constitutional guarantee of religious freedom was being subordinated to a statute or civil law. Rather, it would have required SCOTUS to decide whether the Constitutional Rights granted by the First Amendment (assuming they had been violated) should be protected and held supreme over the fundamental Constitutional rights granted by the Fifth and Fourteenth Amendments (Due Process and Equal Protection Clauses) for people to marry whoever they choose regardless of gender.

    Obergefell v. Hodges, the SCOTUS case holding that state laws prohibiting same sex marriages are unconstitutional was decided by the majority on the Fifth and Fourteenth Amendments Due Process and Equal Protection Clauses. The major disagreement between the majority and the dissenters in Obergefell was over what “fundamental rights” are guaranteed in the Constitution.

    Granted, what “fundamental rights” are guaranteed in the Constitution is subject to some legitimate debate and disagreement. The word “marriage” or what — in the eyes of the federal and state governments — would constitute a legal marriage or who can marry whom is not mentioned or defined anywhere in the Constitution. Nonetheless, being able to marry who you choose would be viewed by almost every man and woman in this Country to be among their fundamental rights as a Citizen. Also, governments bestow several civil rights, privileges, and responsibilities only to people who are legally married.

    So if it had accepted jurisdiction, the Davis case might have required SCOTUS to decide whether the fundamental constitutional right to marry whoever you choose, granted by the Fifth and Fourteenth Amendments, would take precedence over Ms. Davis’ First Amendment Freedom to Exercise Clause claim that her, as a government official, having to issue a marriage license to two men would violate her “sincerely held religious believe that a marriage — in the eyes of her Deity and Church — can only be between a man and a woman.

    So how or on what basis would the Court principally and rationally decide which Amendments control? I’m not sure of the answer. I know that some would argue that since the right to religious freedom was placed in the “First” Amendment it should be considered to take precedence over the over rights in the Bill of Rights. I personally don’t think that should be the way to decide, but it is an admittedly thorny and difficult issue.

    But, IMO, the Court wouldn’t and shouldn’t have had to make such a decision in Davis’ case. Based on the nature and substance of Davis’ claim and argument, I fail to see how Davis’ rights to freely exercise her personal religion were, have been or would be violated whatsoever.

    We have an elected government official, whose official duties require her to issue marriage licenses, refusing to carry out her duties by denying a marriage license to two people who are legally entitled to marry each other in the State and County where they live. In other words, it a non-discretionary act. It requires no personal approval from her.

    Religion and the First Amendment aside for a moment, my first, admittedly unsympathetic, comment about Davis’ complaints would be that if you can’t or aren’t willing to carry out the duties required by law for you to hold your elected position, for whatever reason, you should resign that position. Instead of trying to make a “constitutional power play.”

    However “sincere” Davis’ deeply held religious beliefs about a marriage only being between a man and woman in the eyes of her Deity maybe, requiring her to carry out her duty as an elected official to issue a marriage license to any two people who are legally eligible to marry doesn’t in anyway stop her from freely exercising her personal religious beliefs. She isn’t the one who will perform the wedding ceremony. She’s not being required to marry someone of the same sex. She’s not being prohibiting by any law or ruling SCOTUS from believing that it’s against the law of her personal Deity. Her Church and Minister aren’t being required to hold a marriage ceremony to consecrate that marriage in the eyes of her Church. And a Court Clerk isn’t personally approving or sanctioning a “marriage,” by merely carrying out a non-discretionary duty of her office.

    So what this case — and other similar so-called religious freedom cases — comes down to is that Ms. Davis’ personal religious beliefs would be offended by her having to issue a marriage license to two men or two women. Talking about Originalism, I don’t recall seeing anywhere in the Constitution or Amendments that either I or you have a Constitutional right not to be offended by the behavior of others that isn’t directly harming you. We already have bakers religious right to be offended protected. And perhaps pharmacists and doctors might be too. Where does that slippery slop stop? Does it stop with only being offended by Gay people?

  28. Freedom of Religion is one more part of the new politics of grievance. It can be shouted in a sound bite. It will fit into a meme. It is like shouting “Law and Order”. Fear is the biggest manipulation tool you can use and if you can make people believe they are going to have something they strongly believe in taken away, it will create fear. It helps too if people are ignorant of what their rights are and what freedom means under the US Constitution.

    I would have expected a supreme court justice to know this, so I have no explanation for the motives in the missive issued by these two justices.

    I read a facebook post that says you are free to check out the genitalia of your future partner before you marry them, just don’t force me to make the same choices.

  29. “Misunderstanding Religious Freedom”

    Is this government becoming a Religious Corporation or a Corporate Religion?

  30. Jan – couldn’t agree more – Thomas should report to jail — and only drink from the ‘colored’ water fountain.

    Larry – I had always wondered if some state passed a law making it illegal for people with brown eyes to marry. Eye color isn’t in the constitution (add it to your list), but members of my Church of the Reductio ad Absurdum realized that if brown eyed people marry, they might breed, and they would overpopulate the planet, so we are against it. Once we get OUR law passed, all will be right with the world.

    How would the court handle that (I know they’d never take the case, but it is an interesting thought experiment. They would twist themselves into knots saying the eye color (and Thomas’ marriage) were different from gay marriage. Balderdash!

    The “strict constructionist”, “conservative” justices are neither. They pick and choose, they are happy to overturn precedent by a 5-4 decision, damn what the public thinks, if they have one vote, they will push through. (Brown was unanimous, Roe was 7-2, anointing Bush, redefining the second amendment, decreeing that corporations are people, etc. were 5-4).

    As for religious freedom, there is a big difference between preventing American tribes from using peyote in their religious rights and refusing to do your duties as a public official because your religion tells you that must stop non-believers from exercising their rights, or imposing your views on when the soul enters the body on non-believers.

    Another “religious freedom” question. I opposed the war in Vietnam. After a while, most Americans did. I oppose capital punishment. Given what we have learned, it is often state-sponsored murder. I believe that is the majority opinion now. Nobody said that our tax money couldn’t be used for those purposes. A minority of Americans oppose abortion, yet their will that NOBODY should have an abortion is backed up by denying the use of tax money to pay for that particular medical procedure.

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