How Should Religious Judges Adjudicate Same-Sex Wedding Cases?

For Christian Judges, Is Compromising Religious Beliefs "The Price of Citizenship"?


by Gerard V. Bradley


In our emerging legal climate, Christians are to be admired for their dedication to moral principle, and they are welcome to act in accordance with it at home and at church. But once they venture into public, our new legal overlords tell us, they must act according to a different set of norms.

Anyone who pays attention to the news knows that Evangelical Christians have supplanted Jehovah’s Witnesses and the Amish in religious liberty litigation. Think of the HHS mandate litigation (now on hiatus after the Court hit the “pause-and-compromise” button last month) and the sundry cases involving those who cannot in conscience participate in same-sex weddings. The latter cases are farther reaching, mainly because sexuality pervades more of our common life than does abortion. Add to this pervasiveness the fact that conceptions of the nature and meaning of sexuality are proliferating faster than anyone’s capacity to fully comprehend, and you have a roiling system-wide challenge. The Christians in these cases are not asking, as some contend, for a “license to discriminate.” On the contrary, they are seeking to make just law in light of everyone’s legitimate interests and the overall common good of our society.

Justice Kennedy did religious liberty one favor in last June’s same-sex marriage case when he wrote for the Court: “Many who deem same-sex marriage to be wrong reach that conclusion on decent and honorable religious or philosophical premises” [emphasis added]. Yet, paradoxically, he goes on to write that when such a “sincere” view “becomes enacted law,” the “necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”

The newsmaking cases these days pertain to the space between “decent” personal opposition and the “imprimatur” of “enacted law.” How can the law accommodate those “decent” objections where same-sex marriage has already become “enacted law”? And how should judges who object to same-sex marriage adjudicate these cases?

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