As a teacher of constitutional law, I just love Obergefell v. Hodges, the Supreme Court’s same-sex marriage decision — not necessarily for the substance of its holding or the quality of its reasoning, but because its aftermath provides me with so many teachable moments.
Let me offer two examples: one virtually everyone has been talking about, and one few have mentioned.
First, there’s Rowan County, Ky., Clerk Kim Davis, whose refusal to issue any marriage licenses landed her in jail for contempt of court. The issue her case presents is, in part, how far the First Amendment free exercise clause, and the laws intended to carry it into execution, extend to protect those who “conscientiously object” to same-sex marriage.
The best answer I’ve seen was provided by law professor and First Amendment scholar Eugene Volokh, blogging for the Washington Post: “There’s a lot of appeal to the ‘you take the job, you follow the rules — if you have a religious objection to the rules, quit the job’ approach … but it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.
“Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.”
One of the glories of our political system is the lengths generous majorities have sometimes gone, under the tutelage of the Constitution, to accommodate dissenters, at least in matters where there’s not either an “undue hardship” (Civil Rights Act) or a “compelling state interest” (Religious Freedom Restoration Act). Living in a pluralistic society requires that spirit of accommodation. I’m glad, as a teacher, to have the opportunity to bring that lesson home to my students.
In this time of passionate dispute, with partisans of our great principle of equality on one side and those flying the flag of liberty on the other — as if the two are necessarily at odds — it is especially important to think about how the Constitution calls us to respect and attempt to implement both principles. Sometimes we may indeed have to choose, but it isn’t self-evident this is one of them.
My second example comes from Tennessee where, in the aftermath of the Obergefell decision, a state judge has refused to grant a divorce to an opposite-sex couple.
While Judge Jeffrey M. Atherton clearly expects his decision to be vacated and the couple eventually granted a divorce, he couldn’t in the meantime resist taking a shot at the Supreme Court: “With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that Tennessee’ s judiciary must now await the decision of the U.S. Supreme Court as to what is not a marriage, or better stated, when a marriage is no longer a marriage.”
While it’s easy to dismiss much of his opinion as the sour grapes of someone on the losing side of the argument or a fit of pique, Judge Atherton raises an important issue. In our federal system, many very important areas of jurisdiction have traditionally been left to the states. One of them is (or at least was) marriage, a fact acknowledged by the Supreme Court as recently as 2013, as one of the grounds for striking down provisions of the federal Defense of Marriage Act in Windsor v. U.S.
Even if we disagree about how marriage should be defined, we ought to be able to have a civil, respectful and dispassionate conversation about the proper relationship, under the Constitution, between the federal government and the states, and about whether and how the Constitution’s grant of power to the former is limited.
We the people ordained and established the Constitution. For it to remain the bedrock of our political order requires that we rise above the bedlam of day-to-day politics, disciplining our passions by attending to its principles and resisting the temptation to appeal to it only when it’s convenient.
What are those principles? I’ll be discussing them with my students on Constitution Day this Thursday. But not only then.
Joseph M. Knipperberg is a professor of politics at Oglethorpe University.
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