Berkley Center

The trajectory of LGBTQ rights and religious freedom in this country has been evident for at least eight years, since United States v. Windsor. The Supreme Court has communicated quite clearly, though sometimes absurdly given the absurdity of liberalism itself, its boundaries for how the nation must proceed. They did so again in Fulton v. Philadelphia, though few seem to have ears to hear it.

Everyone with a serious role to play when it comes to these issues should have been focused on what it looks like to move forward politically in a nation where same-sex relationships are recognized by the federal government, but the rights which flow from that recognition are not yet codified, all while sizable portions of the American people and the American institutional landscape do not and will not conform their views or practices to that new legal consensus. The question we have needed to answer is how our society and our laws might accommodate and change to reflect a new, contested understanding of sex, gender, and family, in the healthiest way possible. 

The question we have needed to answer is how our society and our laws might accommodate and change to reflect a new, contested understanding of sex, gender, and family, in the healthiest way possible.

It is the dysfunction of our politics and our social life which has made it difficult for us to ask this question, to govern this nation as we are, not as we might we wish to be. Instead, in practice, we have chosen to proceed not just through zero-sum advocacy, but advocacy and analysis which simply ignore that either religious freedom or LGBTQ rights are at stake (depending on which side one falls). 

It is commonly understood that the most intransigent and aggressive advocates are the true believers, the ones who really care. It would be worth reflecting on the fact that it is the powerful decisionmakers and advocates, who are often neither members of the LGBTQ community nor operating with any kind of mandate from a religious community, are the ones who have led us down this path of high-stakes litigation and landmark Supreme Court cases. 

In Obergefell, the Supreme Court suggested that their decision would require new political action, a new pluralistic settlement, and they have reissued this plea multiple times since. Our politicians, and much of the advocacy class, have willfully ignored their call. Instead, the post-Obergefell scene has been a series of court cases which, advocates tell us, put not just rights on the line, but people’s identities and deepest beliefs. Outside of the courts, we’ve seen mostly messaging bills, a politics of demagoguery, fundraising calls, and politicians, including our previous president, who have been able to take advantage of all of this willful ineptitude and self-inflicted blindness.

In Obergefell, the Supreme Court suggested that their decision would require new political action, a new pluralistic settlement, and they have reissued this plea multiple times since.

Liberalism is absurd because it insists that a government can be representative yet remain neutral. Liberalism entails leaving open fundamental matters, even while it unavoidably must act on some understanding of those matters all of the time. What does this look like in practice? It is the (idealistic? necessary? naïve? insincere?) absurdity of Justice Kennedy’s opinion in Obergefell, which closed with this:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage…They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

But also included this:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned…those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. 

With his opinion, Kennedy both enacted the legalization of a “right” to marriage which “embodies a love that may endure even past death,” while prescribing an interminable commitment to an “open and searching debate” and “proper protection” for those who would advance a view contrary to that right. Such a passage brings to mind Rousseau’s claim that, “If there were a nation of gods, it would be governed democratically. So perfect a government is unsuited to men.” What aspirations Kennedy had for our politics, for our people, that we might hold together such opposing impulses. How far we are falling short, not just of godliness but of fraternity. The Supreme Court demands that which it cannot enforce from a politics which so often operates according to a completely contrary incentive structure.

What aspirations Kennedy had for our politics, for our people, that we might hold together such opposing impulses. How far we are falling short, not just of godliness but of fraternity.

In Masterpiece, Justice Kennedy sought to play out his magnanimity in a court case which involved a baker who, because of his religious beliefs would not design a cake affirming the validity, in his eyes, of same-sex marriage. The baker has since (if not before) Masterpiece been targeted by left-wing activists to some success. The case was decided based on Kennedy’s determination that a Colorado non-discrimination law was not enforced in a way that was religiously neutral, a conclusion he came to in part because of three Colorado Supreme Court cases that were prompted by a right-wing activist who, in retaliation for the pressure placed on the Masterpiece baker, targeted pro-LGBTQ bakeries in Colorado. Mother Jones asked if the Supreme Court “fell for a stunt.” The neutral answer would be, “Yes. So many times, yes.”

Which brings us to Fulton. The city of Philadelphia was happy to work with Catholic Social Services (CSS), and did so with literally no recorded complaints of discrimination from an LGBTQ person denied service. The city acted against CSS, not in response to actual harm, but potential harm. Less generously, Philadelphia acted in response to a political opportunity and political pressure. A CSS employee was quoted in the Philadelphia Inquirer that if, hypothetically, an LGBTQ couple sought to adopt through the institution, the couple would be referred to one of the dozens of other service providers in the city. Activists swarmed. Then politicians. And the city commission responded by passing a law intended to shut out Catholic Social Services from partnering with the government, if CSS didn’t change its policies and, in effect, its beliefs. 

The city acted against CSS, not in response to actual harm, but potential harm. Less generously, Philadelphia acted in response to a political opportunity and political pressure.

The Supreme Court, in a unanimous opinion, held that “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment.” As cited by Justice Alito, despite Justice Kennedy’s opinion in Obergefell that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” one government official told CSS that “it would be great if we followed the teachings of Pope Francis” and that “things have changed since 100 years ago.” 

Even here, even after years of pitched rhetoric about LGBTQ rights threatening religious freedom and religious freedom threatening LGBTQ rights, the responses to this case insist that we only acknowledge one set of claims, that we only see some fellow citizens. Rep. Primaya Jayapal responded to a case that, I must repeat, was decided on the basis of the free exercise clause, by tweeting that “this case isn’t about religious freedom.” 

Progressive lawmakers saying free exercise cases have nothing to do with religious freedom. Conservative activists targeting progressive bakers to point out the injustice of targeting conservative bakers. This isn’t principled self-government; this is performance art which misuses the weight of the law as a prop, a vessel for self-expression. 

Even after years of pitched rhetoric about LGBTQ rights threatening religious freedom and religious freedom threatening LGBTQ rights, the responses to this case insist that we only acknowledge one set of claims, that we only see some fellow citizens.

Debates about whether those who dissented in Obergefell were right or consistent with their previous rulings to argue that same-sex marriage should have advanced through legislative action or referendum, not the courts, are now primarily academic. What is not academic is whether the courts ought to adjudicate out the ramifications of Obergefell or whether it must be up to the people and their representatives to decide how we will live together in a nation where the law promotes a vision of what is right and true that many in the nation contest. This is not a novel or unexpected problem, but the very kind of tension that liberal democracy—absurd or not—is designed to hold together.

The Supreme Court’s call for us to regard one another will only be operative for so long before a milestone case that is more definitive than Bostock, Masterpiece, or Fulton. Such judicial action would let the advocates off the hook. They’d be free to blame the courts for what they put in the courts’ hands. But the truth would be that the longer this goes on without legislative action, the more inexcusable is their complacency. And the more culpable we are for our own.

The story of religious freedom and LGBTQ rights in the twenty-first century has almost entirely been one of judicial action. It is time for the American people to take back the pen, and write our common future together.

The story of religious freedom and LGBTQ rights in the twenty-first century has almost entirely been one of judicial action. It is time for the American people to take back the pen, and write our common future together. 

In order to do that, we must see, acknowledge, and advocate for one another. We must put away the fantasy that there is a future we can achieve in our lifetimes in which we get everything we want or where everyone does what we think is best. We must decide that such a future would require a betrayal of our own values and of the dignity of those who disagree with us, whatever our position on discrete issues might be. Necessarily, we must reject politicians and activists whose aggrandizement depends on our failure to acknowledge and act in light of this reality. In earnest, we should seek to protect LGBTQ rights and religious freedom. We need civic leaders who will uphold the value of both, and acknowledge the insufficiency of only pursuing one or the other, even at a political cost.