An alternative view
by Bernard Brandt
Please forgive me if I do not join the general celebration, but like the character played by Dame Maggie Smith in the superb film, Sister Act, “I appear to have misplaced my tamborine”.
While I am at least happy that that august Court by its decision has closed the barn door, and helped to prevent the sort of circumstances which led to the death of the unfortunate Thomas M. Disch, among many other misfortunes and injustices, I believe that less extreme means could have accomplished the same end, and with less impact upon rights otherwise guaranteed by the First Amendment, than the present decision.
In that, I concur with Justice Roberts in his dissent, at page 28, when he says:
Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1. Respect for sincere religious conviction has led votersand legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
I fear that, as with the decision of the Emperor Nero to authorize same-sex marriage in Roman Imperial Law in A.D. 67, we will see with this decision the beginnings of a new persecution against Christ’s Church.