In the wake of the Obergefell decision, many critics — myself among them — highlighted the dangerous narrowing in Justice Anthony Kennedy’s opinion of the free exercise of religion to mere advocacy. The right to free exercise of religion is more profound than just speech, which is why the founders established it separately and before the right to speech in the First Amendment. This bars the government from intruding on the lives of citizens who live their faith in all aspects of their lives, while restraining the government from establishing a religious faith that binds people to one approved and government-run sect.
That’s where this interpretation by Texas Attorney General Ken Paxton fails. Paxton has instructed county clerks in the state that they do not have to issue marriage licenses to those applicants whose union offends their religious sensibilities, and claims he has lawyers lining up to take those cases:
County clerks can refuse to issue marriage licenses to same-sex couples based on religious objections to gay marriage, Texas Attorney General Ken Paxton said Sunday.
Paxton noted that clerks who refuse to issue licenses can expect to be sued, but added that “numerous lawyers stand ready to assist clerks defending their religious beliefs,” in many cases without charge.
The formal opinion did not specify what constitutes a sincerely held religious belief, noting that “the strength of any such claim depends on the particular facts of each case.” …
Paxton’s opinion also noted that judges and justices of the peace can refuse to perform same-sex marriages.
“Judges and justices of the peace have no mandatory duty to conduct any wedding ceremony,” the opinion said, adding that couples cannot be refused on the basis of race, religion or national origin.
Perhaps this is just bluster from Paxton as a means of hyping civil disobedience, but it’s terrible legal advice. And it’s flat-out wrong, both from a civic and constitutional point of view, at least on the licensing issue.
The argument, such as it is, appears to parallel that of the bakers, photographers, and florists who have tried to opt out of participation in same-sex marriage events, only to find government imposing fines and in some cases a form of “re-education” through mandated “sensitivity training.” Those cases, though, involve the private sector, not government officials. The marketplace has plenty of bakers, florists, and photographers for such services, and the refusal of one to participate does not impose any substantial impediment to those seeking to hold an event that might contradict the religious teaching of some. The same is true for pharmacists who own their own business who refuse to sell abortifacient drugs. A free market produces a plethora of choice for both consumers and providers.
Government, however, is a monopoly. People cannot go elsewhere to get the government-issued license needed to marry. They could possibly go elsewhere to get a Justice of the Peace, but that’s still a government function staffed by government employees. As part of the government, they have no right to impose a religious test on the issuance of permits that isn’t supported by law in some form — and the Supreme Court, for better or worse, has removed those restrictions. It would be similar to county clerks refusing to issue permits for an atheist rally on public land but allowing for a Lutheran rally under the same or similar circumstances, or vice versa. There is no free market for people to go elsewhere to follow the rule of law, no matter how controversial or arguable destructive the law may or may not be. Government employees have to follow the law, or find jobs elsewhere; otherwise, we truly have the Rule of Whim at every level of government, and every bureaucrat becomes a tyrant.
The actual threat to religious liberty comes from that direction, not from the one Paxton imagines. It’s the power of government officials to impose penalties for heterodoxy from their preferred agenda based on a strained reading of “rights” that at best falls far short of the natural rights protected by the Bill of Rights. And make no mistake, as Jeryl Bier reminds us — despite the “false assurances of Anthony Kennedy,” that will be the next attack:
Justice Anthony Kennedy, while dictating one of the most sweeping social changes in history in his opinion in the Obergefell v. Hodges case that legalized same-sex marriage across America, waxes magnanimous towards foes of the expansion of the millennia-old definition of marriage. He said those who believe same-sex marriage is wrong may “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged” in the court’s pronouncement. Likewise, President Obama spoke deferentially of “Americans of goodwill” whose “[o]pposition in some cases has been based on sincere and deeply held beliefs.”
But these statements are platitudes at best; more likely, they are simply disingenuous. In a previous Supreme Court opinion, United States v. Windsor, Kennedy characterized the Defense of Marriage Act as calculated to “degrade or demean” same-sex couples, hardly a “decent and honorable… premise” by any definition. And the president has often compared the treatment of gays wishing to marry with the treatment of blacks prior to civil rights legislation in the 1960s. Certainly the president would not characterize opponents of racial equality as “Americans of goodwill” simply following “sincere and deeply held beliefs.”
This is why it’s important to remain firm on the rule of law rather than the rule of whim. In the film A Man For All Seasons, Paul Scofield (as St. Thomas More) explains the real value of the rule of law, especially in contrast with well-intentioned despotism. The latter just leaves everyone exposed to all sorts of evils:
Defending the rule of law is the main cause for liberty, for the rule of law constrains government, while the rule of whim unchains it.