By Sosamma Samuel-Burnett, J.D.
Founder/President, G.L.O.B.A.L Justice
As a Christian and as a human rights/global justice advocate, I am concerned with a range of issues – war, oppression, disparity, discrimination, etc. Indeed, G.L.O.B.A.L Justice was launched nearly a year ago to help address the severe situations and conditions affecting so many people in so many regions around the world. While I have studied, researched, taught, and advocated for 30 years on human rights efforts such as alleviating poverty, improving child survival, addressing global health and global violence, etc, I did not grapple as deeply with the issue of same sex rights. I considered same sex issues as private, personal concerns more than as broader, societal concerns. Certainly many gay and lesbian individuals have faced societal adversity throughout the years, especially from those who have inflicted hateful acts against them. But outside of those instances of adversity, the same sex rights cause was starkly different than the human rights causes historically and presently around the global. The type of wide scale oppression, stark disparities, and severe violence inflicted by governments, groups, and individuals, such as in human trafficking and terrorism, were of greater severity and immediacy from an advocacy perspective.
However, same sex marriage, and more broadly same sex rights, has been a growing, debated question throughout the world, predominately in western and developed countries, and most notably in the United States. The issue has been presented in churches, state legislatures, and political elections, but had not yet received a determination from the federal government. But on June 26, 2015, the Supreme Court of the United States made a nationally anticipated decision in the case of Obergefell v Hodges. The court ruled in a 5-4 decision that same sex marriage was constitutional. And, the majority opinion, written by Justice Kennedy as the swing vote, provided broad support for same sex marriage as a right.
With this decision, the issue of same sex marriage has shifted from not only private, personal concerns, or even state concerns, but to a wider national and societal concern. As such, this article considers not only the decision in Obergefell, but also the broader implications for American society and the cause of justice in our country, as it relates to same sex rights and other constitutional and human rights.
Marriage & Civil Society
While same sex attraction, relations, and lifestyles are not new to society in general, the recent emphasis on same sex marriage is a newer phenomenon for both the US and the globe. In the US in particular, same sex issues and communities existed within the broader moral and legal framework of our country, but the Obergefell decision raises a number of issues that challenge this moral and legal framework. Further, those challenges may also have a bearing on government, the legal system, businesses, religious organizations, and individuals.
Marriage, and particularly marriage between one man and one woman, is a foundational concept in society. Every era in human history, every region in the globe, and every major religion has established this relationship as a core concept of their societies. While some in society opt out of that core concept or choose a different definition of marriage, the idea of society itself shifting away from that basic concept should not be taken lightly. An individual or group interest or right should not infringe on broader societal interests and norms. That understanding is what makes up the components of civil society. In civil society, a concept that has developed over millennia, we agree as a society to be bound by a basic understanding of the norms, standards, and principles in which we exist together – even if some in that society disagree, and even allowing for that disagreement. As such, if “traditional” marriage is a core concept in our present civil society, we need to recognize that, while allowing for disagreement.
Human Rights and Constitutional Rights
The modern idea of human rights developed out of the movements for the abolition of slavery and women’s suffrage in particular, as well as other efforts for freedom, dignity, equality. Many of the basic human rights are embodied in the Universal Declaration of Human Rights and the various other instruments and treaties that spring from it. Similarly, the US Constitution also captures many of these concepts in its Bill of Rights (Amendments 1-8). Most of the human rights framework is based on the concept of the value and dignity of human life – including equality, freedom from discrimination, right to life/liberty/security, right to marriage and family, etc. But the challenge to upholding any of these human or constitutional rights is that an individual’s exercise of those rights should not infringe on another’s rights, and that government in particular can not infringe on them in most circumstances.
While many in support of same sex marriage, particularly in the context of the Obergefell case, have argued that by recognizing same sex marriage as a constitutional right, the US is supporting human rights. However, the major challenge within the exercise of this particular right is that it infringes considerably on others’ constitutional and/or human rights. The decision by the Supreme Court in Obergefell addresses both the interests in marriage and support for same sex marriage, but it does not address the resulting tension between those rights and other, particularly religious, rights. That conflict of rights is fundamentally different than the Loving v. Virginia case that supported interracial marriage as a constitutional right. While racism and racial divides existed throughout history, outside of extremists thought, racism was not supported by religious or social norms or ideals. Nor did racial equality conflict with constitutional rights or standards, even if some disagreed. Both the US and the world had clearly defined the priority of racial equality, although not all countries or states fully achieved it. On the issue of same sex rights, by contrast, neither the US nor other countries has yet to clearly establish the norms or standards, and mostly because doing so creates tensions with the other existing religious and societal rights.
Further, within the United States, regardless of whether we believe that the Founders were “religious” or whether we agree that the country is “Christian,” the concept of religious freedom is embodied and upheld within the Constitution, particularly in the First Amendment. When same sex or other interests or rights take away from First Amendment rights – we are creating a dynamic that not only creates division in our society, but chips away at the foundational ideas of our democracy. If same sex rights are indeed to be respected, then religious rights need to be respected just as much. And given that religious rights are foundational, deference to those rights and to the history behind them are essential in understanding the importance and value of all personal rights in the United States. Most importantly, when we have freedom of religion, by extension we have freedom of thought, conscience, speech, expression. When one of those fundamental rights is limited in the effort to promote a different form of a right, we are minimizing the value of all of those rights, including the new rights that may be determined.
Federalism and Separation of Powers
The Obergefell decision has led many to declare a victory for same sex rights because the “Supreme Court has spoken on the issue of same sex marriage.” However, this victory needs to be measured against the broader concepts and structure of our governmental system. The Supreme Court is the highest court in the United States with the principle role of interpreting constitutionality of laws. However, this role is in the broader context of a federal system with an important dynamic of separation of powers. The Executive, Legislative, and Judicial branches are meant to be balanced with each upholding the role of the other. The Judicial Branch, and most particularly the Supreme Court, is not intended to make the laws of the nation nor imply the intentions or direction of the Legislative Branch nor the people they represent. Nor can the Supreme Court respond to political questions.
As such, the decision in Obergefell is important but not final. The Supreme Court has found same sex marriage to be constitutional, but the political and social determinations of both the significance and laws related to same sex marriage remain the responsibility of the Legislative Branch and the People. In other words, once a decision is made by the Supreme Court, that decision can either by supported or overturned by both political and moral considerations led by the People through their representatives in the Legislative Branch. History has given us many examples of that process at work – but most notably in the regrettable Dred Scott case of the US Supreme Court. So, the decision in Obergefell is an important historical marker, but it is only one step in the ongoing journey of balancing constitutional issues, governmental interests, and societal priorities.
In addition, under federalism, the issue of marriage, like many other issues that the Constitution does not specifically express or imply to the Federal government, is generally reserved to the states to determine. So, the idea that the US Supreme Court has a final decision on a matter that has been within states’ powers may also constitute judicial overreach.
The Bible states that homosexuality and many other actions and behaviors are not acceptable for Christian life. But, the Bible also teaches about free will and freedom. Christians cannot help heal and provide for needs by attacking the free will and freedoms of others. However, Christians must be vigilant not to have others infringe on our own free will and freedoms. The Obergefell case is an instance when Christians and others need to fully exercise both restraint and vigilance for the protection of rights and freedoms. While the issue of same sex marriage is important in the context of Obergefell, the more significant issue is what might result from that decision as it relates to other rights and freedoms.
The example of Aaron and Melissa Klein highlights some of these potential results. The Kleins owned and operated a Sweet Cakes, a bakery that made among other items, wedding cakes. They declined, based on religious convictions, to make a wedding cake for a lesbian couple. Although the lesbian couple had the option to choose another bakery, they instead opted to not only be offended by the exercise of religious conscience, but also actively pursued methods to shut down the business. Further, Oregon fined the business owners $135,000 for violating Oregon State law that supports same sex marriage.
The situation raises a number of issues. Rights and laws that protect those rights generally relate to how the federal or state government interacts or interferes with individuals or groups. Under Oregon law the lesbian couple has a legal right to marriage. But that right in the context of state law is protected by the state, but should not extend to limiting other rights of other individuals. While businesses may be prevented from discriminating based on race, gender, etc., the states cannot force businesses or individuals to violate religious perspective or act against their conscience without violating their constitutional rights. And if it was constitutional or legal to do that, would the reciprocal application of such a law also apply? For example, if the bakery was owned by a same sex couple who refused to make a cake for a straight couple, would the same fines apply? Or if a non-vegetarian Christian couple asked a Hindu vegetarian restaurant owner to prepare beef for the wedding dinner, would the Hindu be fined? The point is that if we are concerned about discrimination, we should not apply laws indiscriminately and disrespect business or other decisions based on religious views or matters of conscience. Reciprocity and mutuality are important in law and legal protection.
In addition, the constitutionality of same sex marriage does not mean that religious perspectives to the contrary are automatically “hate.” Hate speech and hate crimes apply when individuals and groups target or attack specific races and religions. Hate speech was typically considered inciteful speech that demeaned or otherwise promoted attacks. But simply saying that someone disagrees with an issue or perspective is not and should not be considered hate speech. If so, then every gay or other person who may disagree with religious speech will also be committing a hate crime. Disagreement, particularly on religious or moral grounds (or for that matter for lack of religious or moral grounds), cannot logically be considered an offense or crime without intruding on freedom of thought, speech, or expression.
Lastly, through Obergefell or any other decision or law, we should not attempt to shift the landscape of our country from one that allows for a range of ethnicities, religions, political perspectives, etc. to one that allows only a narrower idea of what is permissible. And while it may be tempting to do this when we see particularly offensive examples against any particular group or idea, applying this narrower approach across the country shifts us from the diversity of democracy to the limitations of socialism.
Certainly we want to live in a democratic republic that listens to its people, protects its people, and promotes the highest ideals of constitutional and human rights. Christianity, and many other of the world’s other major religions, supports those ideals and is against discrimination, alienation, and offense. However, neither Christians nor others need to always agree on everything our government does nor everything some other citizens believe. And we all need to allow for those disagreement, in a democratic context, to be truly free and truly civil in our society.
About the Author:
Founder/President G.L.O.B.A.L Justice
Sosamma Samuel-Burnett, J.D, is Founder and President of G.L.O.B.A.L Justice, an organization dedicated to equipping students and professionals to support advocacy organizations addressing injustices worldwide. Sosamma serves as a policy consultant and international human rights advocate, and is presently a Fellow, Geopolitics/Global with the Centennial Institute at Colorado Christian University. Sosamma earned a Bachelors of Science in Foreign Service from Georgetown University’s School of Foreign Service, with a concentration in International Politics: Law, Relations, & Organization, in Washington, D.C. She also earned a Juris Doctorate from the University of Minnesota Law School, with an emphasis in International Human Rights Law and Public Policy, in Minneapolis, MN
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.