The dominant opposition to same-sex marriage, following the recent Supreme Court decision establishing the constitutional basis of such unions, is based largely on religious doctrine and to some degree on prejudice, bias or intolerance. In response, this column relates a well-remembered law school lesson and an admiration of the wisdom and tolerance of Pope Francis.
In a long-ago moot court case, a law school classmate cited God in attempting to make a point. The judge, a wise and quick-witted professor, quickly responded, “God is not an authority in this jurisdiction, counsel.” Although curt, that statement was not antagonistic to a divine being or any religion; it expressed a truism that duly adopted and constituted authorities determine constitutional rights and law in this country, not religious doctrine or spiritual beliefs.
It’s an argument Justice Kennedy could have made in response to the dissenting justices in Obergefell v. Hodges (see my column of July 2, 2015). The fact is, that case involved individual rights and freedoms under the United States Constitution, not the Bible or any faith-based belief.
Following precedents of prior cases interpreting the fundamental right to marry and other issues relating to homosexual persons, the Court held the Fourteenth Amendment protects the rights of same-sex couples to marry. It was not an aberrant action of activist justices.
The Constitution established the Supreme Court, co-equal with Congress and the Executive Branch, and gave it final judicial authority. One may disagree with decisions of the Court, but the extreme attacks now being made on it based on the Obergefell decision are uninformed, unjustified and, in most cases, reflect an ignorance or willful distortion of our system of jurisprudence. The remarks of Sen. Ted Cruz and former governor Mike Huckabee are particularly inciteful.
In a July 2013 interview, Pope Francis responded to a question about the sexuality of priests by saying, “If someone is gay and he searches for the Lord and has good will, who am I to judge?” That humble statement by the leader of the world’s more than one billion Catholics offers a prescription of behavior for those who support and for those who oppose same-sex marriage.
It’s true the Court’s ruling is going to present freedom of religion issues, particularly for ministers who have an obligation to obey church doctrine. Vendors who offer consumer services and goods to the public have less grounds to refuse service to gays; they do not have a right to inquire of any customer’s sexual orientation or other personal behavior, including L.G.B.T. persons.
It also is true gay individuals are entitled to respect as human beings, sincere in their beliefs and desires to enter loving commitments to the person of their choice. They too should duly respect everyone’s freedom of religion.
If all parties in these circumstances act in the spirit of Pope Francis’ admonition, the raw feelings now being expressed by opponents of gay marriage and some members of the gay community may be moderated.
Contrary to the dissenting justices in Obergefell the Court didn’t stop discussion and debate of these issues, as it couldn’t. It explicitly recognized the rights of religious institutions to proclaim their doctrines and beliefs. Continuing constructive dialogue, including the voice of the “church,” can only be helpful.
Bo Statham is a retired lawyer, congressional aid and businessman. He lives in Gardnerville and can be reached at bostatham@me.com.
