Does the text of the Free Exercise Clause justify special judicial scrutiny of laws burdening religious freedom?
At the Supreme Court’s oral argument on the constitutionality of same-sex marriage, several justices asked questions about the effects of same-sex marriage on religious freedom. These questions might not appear directly relevant to the question of whether the federal Constitution secures a right to same-sex marriage. But they are politically relevant because the method by which same-sex marriage is achieved may make a substantial difference to the accommodations to people who because of reasons of religious conscience do not want to encourage this social arrangement or be connected to its creation.
A political scientist would understand the attempt to fashion a federal right to same-sex marriage as an effort to change the political status quo by constitutional litigation. In states that to date do not recognize same-sex marriage, advocates of the institution would no longer have to negotiate with their opponents or compromise on such matters as whether religious colleges should be required to give benefits to same-sex couples. In contrast, if the constitutional right to same-sex marriage is not affirmed, the process of negotiation is likely to continue, as advocates will have to persuade reluctant voters who may be concerned about other issues of personal and institutional autonomy. In this case, various opt-out rights will likely be given in return for the right to same-sex marriage.
Thus the questions at oral argument may have been an effort to persuade Justice Anthony Kennedy, whose focus has often been on personal liberty, that the optimal way to maximize liberty in the long run may be to let democracy continue work at the state level. Given the support for same-sex marriage among the young, there is little reason to doubt that in the years to come same-sex marriage will be validated in almost all the nation, even in the absence of federal constitutional right. But there is more reason to doubt that opt-out rights would be offered if same-sex marriage were affirmed as a constitutional right. Under these circumstances, a libertarian who supports same-sex marriage but takes a realist view of politics might prefer the messy compromises of democracy to the clear ukases of the judiciary.