Rules Are for Schmucks: Obergefell, Roe v. Wade, and Bob Jones

In 1985, a shrewd legal observer explained why she believed that the legalized abortion opinion in Roe v. Wade–not the narrow conclusion, but the sweeping way that conclusion was justified–caused unnecessary problems:

Roe v. Wade … has occasioned searing criticism of the Court, over a decade of demonstrations, a stream of vituperative mail addressed to Justice Blackmun (the author of the opinion), annual proposals for overruling Roe by constitutional amendment, and a variety of measures in Congress and state legislatures to contain or curtail the decision. In 1973, when Roe issued, abortion law was in a state of change across the nation. There was a distinct trend in the states, noted by the Court, “toward liberalization of abortion statutes.” … The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.

That observer was none other than Ruth Bader Ginsburg–one of the five justices in the Obergefell same-sex marriage case 5-4 majority. Should she have re-read her own words before casting her decisive vote?

The “trend in the states” toward permitting same-sex marriage was unquestionably stronger in early 2015 than the trend toward liberalization of abortion statutes was in 1973. The Obergefell court could simply have ruled that marriage laws should be left to the states, but that a marriage (same-sex or otherwise) lawfully concluded in one state must be legally respected in the others in order for our federal system to function properly–that it makes no sense for a couple to wake up married in one state, and then be unmarried later that day when they commute across a state line. That would have achieved the result of same-sex marriage nationwide for most practical purposes without overturning the will of any electorate or legislature, leaving much weaker grounds for complaint about “heavy-handed judicial intervention.”

But it didn’t. Justice Kennedy, who wrote the majority opinion, now blithely predicts that the uproar will die down in a couple of months, as it did with the 1989 flag burning case. But flag burning doesn’t involve religion, as abortion and same-sex marriage do. The “searing criticism” has already begun, with some presidential candidates suggesting we scrap the Supreme Court altogether, and others saying its rulings only apply to those who agree with them. According to Associated Press surveys, a plurality of Americans supported same-sex marriage before the court ruled, but after its peremptory action the plurality now opposes it. An astonishing 66 percent of Americans now say they favor term limits for Supreme Court justices, replacing the lifetime tenure now provided by the Constitution. There’s also new life for the previously moribund campaign for a constitutional convention to re-work the whole document, which can be called by thirty-four states. With sixty-eight of the ninety-eight partisan state legislative houses now under Republican control, this may be less farfetched than it sounds. It’s certainly less farfetched than Obergefell would have seemed a decade ago. How long will it take until some Republican presidential candidate, trying to distinguish himself from the field, takes up the cry to “reform the Supreme Court”?

The provocation of conflict Ginsburg referred to may also be just around the corner, with the tax-exempt status of religious universities who act in opposition to same-sex marriage–for that matter, the tax-exempt status of any religious entity opposed to same-sex marriage–apparently under threat.

That threat comes from the straightforward application of one of the court’s previous rulings, Bob Jones University v. United States. The university in question had a strong, sincere, biblically-based opposition to interracial marriage, indistinguishable from the strong, sincere, biblically-based opposition to same-sex marriage many religious schools and other entities have today. The Supreme Court, though, in an 8-1 decision, decided that tax exemption should only be available to entities that do not act against “public policy.” Bob Jones lost its exemption because “its racial policies violated the clearly defined public policy, rooted in our Constitution, condemning racial discrimination.”

As a result of Obergefell, we now have another “clearly defined public policy, rooted in our Constitution” of permitting same-sex marriage. The court found the right to same-sex marriage to be so fundamental to liberty that no valid law abridging it could possibly exist–that’s what violation of the “due process” clause of the Constitution means. According to the Obergefell majority, “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.” That sure sounds like a “clearly defined public policy, rooted in our Constitution” to me, and “diminish their personhood” sounds exactly like the rationale for laws against racial discrimination.

So a college that denies admission or married-couple housing to same-sex married couples would certainly seem to be acting contrary to a “clearly defined public policy, rooted in our Constitution.” How about a tax-exempt church that thunders condemnation of persons in such an arrangement? If a school that opposes interracial marriage forfeits its tax exemption, what makes a church that opposes the equally clear public policy supporting same-sex marriage be different? Note that the Bob Jones opinion considered and easily dismissed the university’s First Amendment claims that it should be free to exercise its sincere religious beliefs by discriminating against interracial marriage.

Bob Jones was decided before the Democratic-controlled Congress enacted RFRA (the Religious Freedom Restoration Act) in 1993. It seems quite possible that RFRA may have the effect of reversing Bob Jones, since it prevents the federal government from “burdening” the exercise of religion unless it has selected the “least restrictive means” of accomplishing its purpose. If the purpose is to allow Americans the freedom of interracial marriage, a less restrictive means of achieving that purpose might be to help those in such marriages find a college where it isn’t banned. (This isn’t hard–even Bob Jones University changed its tune on the requirements of “inerrant” scripture after it had to start paying taxes like the rest of us.)

Not willing to take a chance on RFRA, though—and anxious to grandstand–Republicans in Congress have scurried to introduce new legislation to make it clear that individuals, for-profit corpora­tions, and nonprofits are free to discriminate against same-sex marriage as much as they want, without any retribution from the federal government. This will cover not only the tax exemption for bigoted colleges but also things like requirements for government contracts. If the leadership put this to a quick vote, I’m sure it would pass. But they won’t, because they first want to milk the “religious freedom” cash cow for all it’s worth, just like the churches have done for decades with abortion.

One commentator, anticipating and dreading the coming battle over tax exemptions, has suggested a straightforward, baby-with-the-bathwater approach: “Now’s the Time To End Tax Exemptions for Religious Institutions.” In fact, he goes much further than that, suggesting an end to tax-exempt status for nearly all institutions (including, presumably, the American Humanist Association), pointing out the irony that “Conservatives are footing the bill for taxes that Planned Parenthood, a nonprofit, doesn’t pay—while liberals are making up revenue lost from the National Rifle Association.” There’s too much collective lobbying clout in the nonprofit sector for this repeal to ever happen, but it’s an intriguing thought.

Was Ginsburg’s 1985 view of Roe v. Wade correct? Would a more incremental approach have led to less raging controversy than we still have today, forty-plus years on, that shows not the slightest sign of fading? Would trusting the people to keep moving in the same direction they were already rapidly moving on same-sex marriage, rather than a “heavy-handed judicial intervention,” have been a sounder approach? I don’t know how to peek into an alternate universe to answer these questions, but I do know that we’re in for a long, ugly ride.