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The initial commentaries on Burwell v. Hobby Lobby Stores, Inc., et al. 573 U.S. ___ (2014) have focused on problems that people believe will result from the majority’s statements about religious freedom under the Religious Freedom Restoration Act (“RFRA”). But for all the fears that the decision will open the door to new claims by people who want to use religious excuses to discriminate, it appears equally clear that the Hobby Lobby ruling writes finality to arguments about marriage equality – not merely for same sex marriages, but for all non-traditional marriages.

Hobby Lobby Ruling

People wanting to marry should see in the decision an end to all forms of faith-based objections and definitions. Family Law practitioners should see in the decision a vast expansion of their potential client base.

Same sex partners seeking to marry now need only sincerely believe their marriage is religiously required and no prohibition will stand against them. The defenders of marriage discrimination have long argued that marriage is traditionally a sacrament, ordained by whatever gods they worship, and should not be upset by mere mortal courts. The majority was clear that, in the face of a sincere religious belief, only the most narrowly constructed restrictions on practice will survive.

As the majority states, “Repeatedly and in many different contexts, we have warned that courts must not presume to determine…the plausibility of a religious claim.” [citations omitted] Burwell, slip opn. p.37. Challengers may not attack the plausibility of a same sex couple’s claim, but might try to challenge the claim’s sincerity. But in a nation where gay people who reach adulthood have withstood decades of anti-gay tirades and official discrimination, it is difficult to imagine a fact finder having any basis for questioning the sincerity of a person who remains gay into adulthood.

As has been shown in every same sex marriage case, none of the asserted bases for restricting gay marriage survives logical analysis. Perhaps the most popular are the claims that heterosex marriage promotes population growth and that dual parent households are healthier for children. As pointed out as recently as July 1, allowing same sex couples to wed does nothing to limit the fecundity of dual sex couples. Love v. Beshear, 3:13-CV-750-H (2014; WD, Kentucky)

And if there were any sincere desire to insist that all children have two parents, the much narrower, less discriminatory government action would be to prohibit divorce. Since most marriages are heterosex, most children in single-parent families are the result of the dissolution of a heterosex marriage, and preventing heterosex parents from divorcing would have a far greater impact on children than any restriction on same sex marriage. But, of course, NONE of the big, for-profit church businesses are pushing for an end to divorce.

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Similarly, the majority opinion obliterates the arguments for prohibiting same sex couples from adopting or being foster parents.

And the majority opinion reaches far beyond mere same sex marriage. In Reynolds v. U.S. (1879) the Court found that the government could prohibit polygamy, in its proper role of regulating “good order” in society. But not under the RFRA. Now, when the government wants to regulate “good order”, it must act only through the most narrowly tailored means to accomplish that goal. Fundamentalist Mormons generate vast numbers of children in their polygamous households. Such marriages clearly support the asserted goal of promoting population growth.

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Generally speaking, people are free to act unless their action offends some important governmental proscription. The majority opinion places the burden of justifying such proscriptions squarely on government: “HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.” Burwell, slip opn. p.47. With the wealth of family services, child protective agencies, domestic violence laws, and public health services, it is inconceivable that the government has no more narrowly tailored means than prohibition to address any problems that might arise in polygamous marriages.

Similarly, it is hard to conceive of any basis for sustaining the broad stroke prohibition of polyandrous marriages, when any number of much more narrowly tailored governmental actions could address health, safety, or other public concerns about such marriages or their progeny. The development of legal recognition for multiple parent marriages, recently codified into California’s Family Code, shows that sophisticated societies can deal with evolving views on marriage and parenting roles. The majority opinion seems quite in step with these modern developments.

For a variety of reasons, prostitution has been regulated and prohibited in our society. But as the majority makes clear, all such prohibitions must be viewed through the lens of strict scrutiny.

The majority opinion may help to revive ancient traditions as well. From earliest recorded human history, some religions featured temple prostitutes. For a variety of reasons, prostitution has been regulated and prohibited in our society. But as the majority makes clear, all such prohibitions must be viewed through the lens of strict scrutiny.

Religious prostitution is now clearly permissible, even if prostitution merely as business may not be. The conservative, largely Christian state of Nevada provides decades of evidence from which it is clear that government can regulate prostitution and protect both the prostitutes and their customers. Thus, narrowly tailored laws, short of prohibition, can reasonably allow church prostitution to resume status as acceptable religious practice.

The Hobby Lobby majority states clearly that a law interfering with a sincere religious practice must be tested for being “the least-restrictive-means” available to address the government’s compelling interest. It seems obvious that blanket prohibition may still be the least restrictive means for dealing with identifiable problems with adult-child marriage, and for marriage between humans and other species. The ability to articulate science and logic based justifications for such prohibitions underscores the lack of such ability to justify prohibitions on sincerely religious exercise of other relationships between adults.

Such clarity by the majority opinion should be good news for all people opposed to regulations imposed out of what, justice Scalia said in 2003, is society’s belief that certain forms of sexual behavior are “immoral and unacceptable,” without any form of scientific or rational logical basis. Lawrence v. Texas (2003). In its strong defense of a corporation’s right to inflict its religio-business beliefs on its employees, the majority provides equally strong language protecting holders of all sorts of non-traditional religious beliefs about marriage from restrictions reflecting social intolerance without rational basis.

This may be just another example of corporatists’ propensity for taking positions with no regard for the long-term consequences of what they are doing. Antonin Scalia is quite openly proud of strident claims that his ideology is more important than legal analysis in his Court opinions. But the result of his pronunciamentos has been a collection of quotations that true conservative judges cite as requiring courts to recognize same-sex marriage.

In its rush to use gerrymandering to create and control what English political history calls “rotten boroughs”, and to take political instruction from the most extreme fringes of polemic talking heads and the oil industry, the Tea Bag Republican Party has written itself out of national election campaigns for the foreseeable future. And it has simultaneously rejected participation by young people, women and nonwhites. Whatever transient victories these policies might yield, the long-term result is almost certainly going to benefit progressive policies, as surely as Scalia’s strident hypocricies have advanced the cause of marriage equality.

Tom Hall

Tom Hall