Mark Silk: Spiritual Politics Opinion

Religious liberty v. 14th Amendment in the offing

U.S. Department of Justice Scales of Justice
U.S. Department of Justice Scales of Justice

U.S. Department of Justice Scales of Justice

According to the New York Times, Republican politicians have reason to celebrate the Supreme Court’s decision to decide whether the Fourteenth Amendment requires all states to license same-sex marriages and to recognize such marriages when contracted elsewhere. That’s because if the Court, as seems likely, finds that anti-SSM laws abridge citizens’ privileges or deny them equal protection, it will free GOP candidates from having to fight state-by-state for a losing cause.

They’ll have an excuse to say, “It’s been settled. Let’s move on,” write Jeremy Peters and Jonathan Martin. “But what remains problematic for these candidates — and what is reflected in statements they often make in the next breath about the importance of safeguarding ‘religious liberties’ — is the fact that many Republican primary voters do not want to drop the fight.”

Problematic? I’m inclined to think otherwise. In our never-ending culture war, the religious liberty battlefield is a lot more favorable for the GOP than the SSM one.

When push comes to shove, Americans have difficulty resisting equal rights for all — and push has come to shove hard for SSM in recent years. At the same time, Americans tend to be strong supporters of religious liberty, built as it is into both the Constitution and the mythology of America.

Whether the issue is securing the ability to discriminate against same-sex couples in the provision of goods and services or exemptions from the Affordable Care Act’s contraception mandate, “religious liberty” can be depended upon to elicit broader political support than “traditional marriage.” Legally, it is secured not only by the Free Exercise Clause but also by federal and state Religious Freedom Restorations acts.

These may or may not prevail in court against the requirements of the Fourteenth Amendment. But politically, they offer the same opportunity for rallying support that the Supreme Court’s school prayer and abortion decisions have. If I were a GOP candidate, I’d be happy with a Supreme Court decision that let me thump the drums of religious liberty against the onward march of gay rights. And I’m betting that that’s just what’s coming down the pike.

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service


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  • Hi Mark,
    I am betting that the S.C. will opt for all States having to recognize the marriages of other states. The 14th Amendment solution is unnecessarily broad.
    I agree that the GOP can fight this loosing battle, but the war (dictating consenting adults’ sexual behavior) was lost long ago.

  • I am guessing gay marriage will not harm traditional marriage anymore then what is culturally going on in the west., While Christians are debating gay marriage and fighting with those supporting gay marriage, the civilized world is falling apart. Christians who have been in the mideast since Jesus and Saint Paul in the Mideast are evaporating. Divorced Americans and Europeans are beginning to outnumber those married one time. Jobless college education does not get you a job. Drug use is up. Americans’ fund murder and terror of innocent Mexicans. So let us get worked up about two people of the same sex wanting a legal bond with each other.

  • One would think, with all the sanctimonious bellyaching over gay marriage and how it’s supposedly “destroying” the institution of marriage, one wonders why the Religious Right isn’t paying more attention to the ways in which heterosexual couples are undermining it already. Divorce is surprisingly common, and oddly enough, is actually MORE common among evangelicals than other groups (see e.g.

    Given that these people have, by their proclivity to divorce, already caused enough damage to “the institution of marriage,” before they run around telling gays they can’t be permitted to marry, maybe they ought to begin policing their own approach to marriage and actually start treating it as the “sacred” institution they keep screaming that it is. After all, this is precisely what their own Jesus clearly taught them:

    “Why do you look at the speck that is in your brother’s eye, but do not notice the log that is in your own eye? Or how can you say to your brother, ‘Let me take the speck out of your eye,’ and behold, the log is in your own eye? You hypocrite, first take the log out of your own eye, and then you will see clearly to take the speck out of your brother’s eye.” (Mt 7:3-5)

    “Or how can you say to your brother, ‘Brother, let me take out the speck that is in your eye,’ when you yourself do not see the log that is in your own eye? You hypocrite, first take the log out of your own eye, and then you will see clearly to take out the speck that is in your brother’s eye.” (Lk 6:42)

    (See for the above gospel passages.)

  • On an interesting note is that corporate America is pretty much lining up on the side of marriage equality here and opposing the phony Jim Crow 2.0 ‘religious freedom” bills. They are finding it would be bad for business to support discriminatory behavior.

    This can easily cause the divisions between fiscal conservatives and social conservatives to become far more pronounced.

  • I’m all for getting this debauchery behind us as fast as possible. then we can move on to exposing the pederastic underbelly of the reality of “same sex attraction.” Which of course historically always seems to always include grooming kids to be future lovers of same sex attracted adults. This is like the porn industry. It is not just going to slide into some kind of quiet behavior that seems no different than anything else. It is going to get more and more depraved as it grows in power. That is how the licentious behave throughout history. Just because we have cell phones and fast computers does not change the evil, coercion and seduction behind sexual gratification.

    Just as celebrating the sexual immorality of abortion culture, gay culture will grow in depravity until society must make changes once again.

    We are giving our children to monsters. Welcome to the banging your head into the door of forgetting what history teaches. Molech worshiped through the idol of the rainbow flag.

  • Corporate America is ran by the 1%. Gay marriage would cost them money. For example they are afraid of domestic partnerships;it might for example partnership with retirement benefits. It is not at all about marriage and certainly not the destruction of of the traditional family. Example —- two elderly sisters receiving ones pension and health benefits

  • Well, I suppose if you don’t have any actuals facts, logic, experience, and compassion to back you up, then…

    lies, illogic, making crap up about people you don’t know and know nothing about, and hate will fill the bill.

  • The battle against Gods design and Will for sexuality and marriage was lost before it was even started. If things go as you wish, it will be an empty, hollow and ultimately self-defeating victory. So very sad.

  • You know what’s great about living in America, Frank?

    You can go on believing the stuff you tell yourself, and on one but you and your fellow travelers will give a crap. We gay people, our families, our friends and colleagues, and our churches will celebrate our love, our marriages, our faiths, and the end to this vicious prejudice, at least in the civilized world.

    And you and your fellow travelers can all just sit in your darkened rooms, angry and bitter, that you have lost dominion over our lives, and perhaps, over your own. As you say, SO SAD!!!!!!

    Meanwhile, I will rejoice in your bitterness and your anger, in your weeping and wailing, your lamentations and your gnashing of teeth.


  • Re: “The battle against Gods design and Will for sexuality and marriage was lost before it was even started.”

    Ah. So YOU’RE the arbiter of “God’s design,” are you? Wow. What a feather the Almighty stuck in your cap! Must be nice to be so special, and to have so much control over the human race. Now everyone has to run to you to ask what “God’s design” is, and comply with all your directives. No?

  • It is sad that our never ending culture war always seems to be caused by religious rules which involve man’s interpretation of some sacred document. Whether you are a religious person or an atheist such animus is uncalled for. is there any basis anywhere for one to hate another because their beliefs are different than ours.

  • Its not the belief which is at issue, its what people do in service of that belief. The whole notion that one cause deliberate malicious harm towards others and expect it to be considered “religious freedom” is laughable. Religious excuses for discrimination in business has as much of a rational and legal basis as human sacrifice.

  • You are dead wrong.

    Gay marriage MAKES money. It NYS generated more than $250 million in one year additional revenue from gay marriage.

    Gay marriage means a greater pooling of resources for many. Increased consumer and investor power. Easier support for families and freeing up income which can be spent elsewhere.

    Discrimination costs businesses money. It generates bad PR. Nobody wants to be associated with something which openly antagonizes a sizable portion of their market. Big businesses also do not want to turn away talent by discriminating against them in the workplace.

    As for partnerships, you are wrong about that as well. A domestic partnership is not a marriage. It is never treated as one. Hence the reason why marriage is the issue. As for the “destruction of the traditional family”, one is not related to the other. Unless you expect multitudes people to get divorced, become gay and marry their partners, there is no causal relation here.

  • If it there was harm caused by gay marriage, the opponents would be able to use clear examples from the various countries and states which have it. But they don’t. They dishonestly treat the issue as a hypothetical. Ignoring that it is already implemented and has real world effects.

    Despite the phony arguments used by the anti-gay crowd, there has been no concerted effort in lobbying for incest or polygamy where gay marriage is legal. There has been no documented studies showing children of married gay couples are in any way disadvantaged or damaged. The opposite has actually been indicated in some studies.

    The only drawback has been some fundamentalist christian bigots have taken to whining like spoiled schoolgirls.

  • Larry so it is about money. My problem is not gay marriage it is about just how stupid this conversation is. If you want to get married and call it spiritual based on love so be it, make it legal. How can I argue against this. You do not have to expect other to agree. Respect others opinions. like you want them to accept yours. and yes In the end it is a legal document because like a heterosexual marriage in the end it is a legal document.

  • No, but its nice to know that you are avoiding my point entirely.

    Its also about self-interested people abusing notions of religious freedom in order to reinstate discrimination under the color of law. Which has an added effect of being bad for most businesses on many levels.

    I mentioned businesses because of the political realities. The GOP and conservatives in general usually fall into two “camps”. Pro-business fiscal conservatives and Conservative Christian social conservatives. There are times when both are aligned in interests. But here they are diametrically opposed. Gay marriage and anti-discrimination laws favor businesses.

    I don’t concern myself with what people consider spiritual unless it impacts our civil society. Civil liberties are not about people agreeing to do something. Its about creating reasonable limits as to what your disagreement means to others. Religious freedom was never license to harm others. Discrimination is harm.

    Not all opinions carry equal weight or are of equal validity. Respect is not something granted as a matter of course. It is earned.