I had planned on being a lawyer since I was in junior high, so I fancied myself fairly current on developments in the legal world when I graduated from college. However, in law school, I found myself frequently coming across cases that stopped me dead and forced me to recontextualize the way I understood our public order. I realized that there were some areas where case law had long moved past where I thought it was, and there were other critical cases I was totally unaware of.
As I’ve been teaching American Constitutional Law for the past several years, I have had the opportunity to teach many of these cases to students, and I often find myself thinking, “I really wish everyone were more aware of these,” particularly with regard to some cases that impact important issues in Christian circles.
So below you’ll find my humble attempt to rectify that problem. Some of you may have heard of all of these cases, and some of you may know of other cases that you think would deserve a place on this list instead of one of the ones I’ve picked. To the first group I say “congratulations!” To the second group, I say, “Feel free to leave your suggestions in the comments, but nana nana boo boo, I picked the list, not you.”
For more information on each case, click on the case title.
“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.” (emphasis added)
There are a lot of good things in that paragraph that I agree with, but swap the references to racial discrimination out for “sexual orientation,” and you have the gold standard of what the same sex marriage movement is hoping for.
You might expect here that I picked this case to bemoan the forward march of secularism and the many cases limiting the free expression of religion in the public school context. But that’s not why I think this case is important.
This case is important because it was authored by Justice Anthony Kennedy, the much-vaunted “swing vote” on the current Supreme Court, and when it comes to the religion clauses of the Constitution, that role is more important than almost anywhere else.
In this area of law, there are really three major lines of thought. Kennedy’s theory is primarily concerned that the government not coerce citizens into favoring one religion or another or to favor religion over irreligion. Under this theory, Kennedy analyzed the conditions of the High School commencement ceremony, and he felt that the situation left Deborah Weisman with little practical alternative to what appeared to be participating in the benedictory prayer other than choosing not to attend her graduation. Under this same noncoercion theory, Kennedy did not object to programs which authorized school vouchers (Agostini v. Felton). At least until the composition of the Court changes, Christians need to familiarize themselves with Kennedy’s arguments, because they represent the view that most often carries the day.
This case is important for two principle reasons. First, it remains the default state of Constitutional protection of the free exercise of religion. Second, the backlash against this case resulted in the passage of the Religious Freedom Restoration Act (RFRA) by both the Federal Government and most of the States. This Act requires that when the government infringes on a person’s free exercise of religion, it must do so for a compelling reason and in a manner that infringes on no more speech than necessary (a standard known as “strict scrutiny”).
Of course, the recent decision by the Supreme Court that “person” embraces corporate personhood in Burwell v. Hobby Lobby Stores has started to generate some backlash against RFRA. Should this law ever be repealed, the default state of protection will revert to the standard announced in Smith, and there’s no reason that a general law about something like discrimination couldn’t be extended generally to apply to all organizations, regardless of their status. Especially given the increasingly-accepted argument that Conservative Christian views on homosexuality are driven solely by bigotry and are therefore not religious beliefs.
This is the case that inspired me to write this piece. Many Christians advocate to this day for us to “overturn Roe,” but the truth is that much or most of the meat of that ruling has been changed. In a very real sense, Roe is no longer the law of the land, Casey is. Under this new standard, the State is permitted to advocate for the life of the child very proactively, and while it is still prevented from outlawing all abortion, the recognition that a developing child also has rights and interests that can be protected by the State is deeply important.
There is one other aspect of this case that is fascinating to me, and this is the shift in reasoning that O’Connor employs, grounding the right to abortion in a liberty interest protected by the Constitution, rather than the privacy argument advanced by the Court in Roe. O’Connor was concerned that women not be turned into “incubators of the State,” and she describes the liberty interest of the constitution in the following way:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
It’s beyond the scope of this article to delve into all the implications of this statement, but grounding personhood in the concept of individual choice and a postmodern concept of self-determination has profound implications. If we understand this particular anthropological worldview, we start to understand why the modern world so reviles Christians for “dehumanizing” others by failing to fully affirm and support their lifestyle choices and beliefs about who they are.
While the other cases on this list are ones Christians should become familiar with, this is the one case I believe that we have to become aware of. People from across the political spectrum have mused upon the impact of this ruling on religious schools with respect to the growing consensus regarding discrimination based on sexual orientation, and, as Gordon College has experienced, public entities are already backing out of contracts and questioning the college’s accreditation over concerns in this arena. While the ruling seems to protect churches and other “purely religious” organizations, it is not fear mongering to say that the application of this case to alleged orientation-based discrimination is most definitely an issue that Christian colleges will confront in the near future.
Want to know more? Read Donald Roth’s Top 10 United States Supreme Court Cases from the Last Term for more readings on important U.S. Supreme Court cases.
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Two of these cases are about establishing basic civil rights for African Americans by abolishing systemic, legalized racism in southern states that aimed at preventing interracial marriages. That isn’t exactly noted or discussed; it seems more important to the author to warn that they are precedents for gay marriage which is already legal in most states. Why is gay marriage the overriding issue rather than the historic civil rights issue? Does the author feel there was something wrong with how these cases were decided that made them applicable to gay couples? If not, then what exactly is the problem with regarding them as precedents for a legal right for gay couples to marry? I’d also like to point out that it’s possible to be a “conservative Christian” and support marriage equality. You could say opposition to gay marriage is a “more conservative” position, but you can’t define theological or political conservativism by this single issue.
Thank you so much for taking the time to comment. My response is below, and I welcome any further feedback.
As to your concern about gay marriage v. historic civil rights –
On descriptions: I framed this article mostly in terms of cases which I don’t think are that well known which have significant implications for currently developing issues. If you click through on the case names for any of the cases above, you will find a brief summary of the facts and essential holding of the Court in each case. I don’t want to duck the importance of these cases as a historical matter in any way, but those matters are largely settled, and the scope of the article is more prospective.
On content: I don’t think that either of these cases should necessarily extend to the issue of gay marriage, as there are very good Constitutional reasons to consider racial discrimination a special case in our history. We engaged in it for a sustained period and at a high level, as even the Constitution considered slaves as 3/5 of a person. We have three Constitutional Amendments which are specifically directed toward remedying it, and race/ethnicity currently sits alone as the form of discrimination subject to strict scrutiny.
I also happen to think that the Bob Jones case was wrongly decided on both issues of tax policy and constitutional law (which we can get in to if you would like, but I won’t foist that all on you without provocation), although that categorically does not mean that I defend the university’s policy as morally right.
On using these cases as precedent: I don’t happen to personally buy the equation between racial discrimination and orientation-based discrimination. The argument made in case law for why racial discrimination is so bad is tied to it being a judgment based on an immutable attribute of someone’s person over which they lack volitional control. While this argument is often made with respect to orientation, I don’t think it can be sincerely sustained. The leading edge of the movement these days argues that sexuality and gender are both fluid concepts, rather than being biologically determined, and the “gay/straight” dichotomy has resulted in quite a bit of internal animosity within the LGBT community regarding views on bisexuals. It is also brought into doubt by the letter I left out of the more common iteration of the acronym these days, namely the “Questioning” in LGBTQ.
I believe that the trajectory of the debate, having convinced many that it’s hateful to judge people for what they can’t change, has now moved to trying to celebrate the liberty we have to define ourselves the way we want without societal judgment. I’m all for having an open debate over that second proposition, but that would mean that the movement shouldn’t be able to essentially have its cake and eat it too.
As to your concern over defining “conservatism” –
I guess I’m not that interested in debating this point. I will grant that your definition of conservative will vary based on whether you’re emphasizing economic, social, or religious aspects of conservatism. I’m not particularly interested in trying to play judge here over who counts as in or out of the conservative camp; I’m purely identifying which view is disfavored using common parlance. As you say, the position is clearly “more conservative” than positions advocating for marriage equality, and while we appear to share a distaste for single-issue politics or theology, I do think that this view of marriage is still sufficiently common among those who would self-identify as “Conservative Christians” that it is not unfair to consider it representative (even if you contest whether it should be definitional).
Thanks for your response. I have only one point in reply. There is quite a lot of research showing several biological/developmental and family/genetic factors that are likely to be causes of homosexuality. Some studies have offered good hypotheses for why homosexuality is not selected against; it may actually indicate an advantage (higher fecundity) in the larger heterosexual family. At any rate, I would expect the amount of homosexuality that is volitional or “choose your own adventure” sexual identity seeking is a tiny minority and a totally different issue. I suspect the law and society, especially the LGBT/Q communities, will have to ask some hard, discriminating questions as to whether the difference between hard-wired and volitional identities should be written into the law, but one thing will not be debatable, and that is the natural basis for most homosexuality.
I hope you and other readers here will attend “Building an Inclusive Community: Scripture, Science & Story” this Saturday (details here: http://oneiowa.org/events/ Please RSVP) where the issue will be discussed from scientific and reformed, biblical perspectives.