In June 2015 the United States Supreme Court ruled in favor of the legality of same-sex marriage. Many states had already legalized it and most Americans thought it should be legal. As such, the ruling was consistent both with the constitution and with the democratic ideal of majority rule. There are, of course, those who objected to the ruling and are even now working to undo it.
Some claim that the court acted contrary to democratic rule by engaging in judicial activism. Not surprisingly, some of those who made this claim had no complaints when the court ruled in ways they liked, despite the general principles being the same (that is, the court ruling in ways contrary to what voters had decided). I do see the appeal of principled and consistent arguments against the Supreme Court engaging in activism and overruling what the voters have decided. But I rarely see such arguments as most people follow the principle that they like what they like. However, my concern here is with another avenue of dissent against the decision, namely that this ruling infringes on religious liberty.
The argument from religious liberty is an interesting one. On intriguing aspect is that the argument is made in terms of religious liberty rather than the older tactic of openly attacking gay people for alleged moral wickedness. This change of tactic seems to show a recognition that most Americans accept or at least tolerate their fellow gay Americans. As such, this tactic acknowledges a changed world. This change also represents clever rhetoric: the intent is not to deny some people their rights, but to protect religious liberty. Protecting liberty sells better than denying rights. While protecting liberty is commendable, the obvious question is whether the legalization of same-sex marriage infringes on religious liberty.
In general, there are two ways to infringe on liberty. The first is by forbiddance. That is, preventing a person from exercising their freedom. For example, the liberty of free expression can be infringed by preventing a person from freely expressing their ideas. For example, the state might impose penalties for people who criticize the leader.
The second is by force. This is compelling for people to act against their will. For example, having a law that requires people to dress in a certain way when they do not wish to do so. As another example, having a law that would compel people to praise the great leader. Since some people consider entitlements to fall under liberties, another way a person could have liberty infringed upon is to be denied her entitlements. For example, the liberty of education in the United States entitles children to a public education. Hence, taking away public education would be an imposition on that right.
It is important to note that not all cases of forbidding or forcing are violations of liberties. This is because there are legitimate grounds for limiting liberties, such as the principle of harm. For example, it is not a violation of a person’s liberty to prevent him from texting death threats to his ex-wife. As another example, it is not a violation of a person’s liberty to require her to have a license to drive a car.
Given this discussion, for the legalization of same-sex marriage to impose on religious liberty would require that it wrongfully forbids religious people from engaging in religious activities, wrongfully forces religious people to engage in behavior contrary to their religion or wrongfully denies religious people entitlements connected to their religion.
The third one is the easiest and quickest to address: there does not seem to be any way that the legalization of same-sex marriage denies religious people entitlements connected to their religion. While I might not have considered all the possibilities, I will move on to the first two.
On the face of it, the legalization of same-sex marriage does not seem to wrongfully forbid religious people from engaging in religious activities. To give some obvious examples, it does not forbid people from praying, attending religious services or saying religious things.
While some people have presented slippery slope “arguments” that this legalization will lead to such forbiddances, there is nothing in the ruling that indicates this or even mentions anything remotely like it. As with all such arguments, the burden of proof rests on those who claim that there will be this inevitable or likely slide. While inter-faith and inter-racial marriage are different matters, allowing these to occur was also supposed to lead to terrible things. None of these happened, which leads one to suspect that the doomsayers will be proven wrong yet again. As this is being written in 2025, none of the dire predictions came true. But perhaps we just need to wait another decade or ten.
But, of course, if a rational case can be made linking the legalization of same-sex marriage to real violations of religious liberty, then it would be reasonable to be worried. However, the linkage is based on psychological fear rather than logical support.
It also seems that the legalization of same-sex marriage does not force religious people to wrongfully engage in behavior contrary to their religion. While it is legal for same-sex couples to marry, this does not compel people to become gay and then gay-marry someone else who is (now) gay. Religious people are not compelled to like, approve of or even feel tolerant of same-sex marriage. They are free to dislike, disapprove, and condemn it. They are free to try to amend the Constitution to forbid same-sex marriage.
It might be argued that religious people are compelled to allow other people to engage in behavior that is against their professed religious beliefs, and this is a violation of religious freedom. An easy and obvious reply is that allowing other people to engage in behavior that is against one’s religion is not a violation of one’s religious liberty. This is because religious liberty is not supposed to be the liberty to impose one’s religion on others, but the liberty to practice one’s religion.
For example, the fact that I am at liberty to eat pork and lobster is not a violation of the religious liberty of Jews and Muslims. The fact that some women can go out in public with their faces exposed is not a violation of the religious liberty of some Muslims. The fact that people can have religions other than Christianity is not a violation of the religious liberty of Christians. As such, the fact that same-sex couples can legally marry does not violate the religious liberty of anyone.
It might be objected that it will eventually violate the religious liberty of some people. Some argued that religious institutions will be compelled to perform same-sex weddings (as they might be compelled to perform inter-racial or inter-faith marriages). This, I would agree, would be a violation of their religious liberty and liberty of conscience. Private, non-commercial organizations have every right to discriminate and exclude as that is part of their right of freedom of non-association. Fortunately, the legalization of same-sex marriage does not compel such organizations to perform these marriages. If it did, I would certainly oppose that violation of religious liberty.
It might also be objected that people in government positions would be required to issue same-sex marriage licenses, perform the legal act of marrying a same-sex couple, or recognize the marriage of a same-sex couple. People at the IRS would even be compelled to process the tax forms of same-sex couples.
The conflict between conscience and authority is nothing new and philosophers have long addressed this matter. Thoreau, for example, argued that people should follow their conscience and disobey what they regard as unjust laws.
This does have considerable appeal, and I agree that morality trumps law in terms of what a person should do. I should do what is right, even if the law requires that I do evil. This view is a necessary condition for accepting that laws can be unjust or immoral, which I accept. Because of this, I agree that a person whose conscience forbids her from accepting same-sex marriage has the moral right to refuse to follow the law. That said, the person should resign from her post in protest rather than simply refusing to follow the law. As an official of the state, the person has an obligation to perform their job and must choose between keeping that job and following their conscience. That said, I am certainly open to moral arguments for people refusing to follow the law while also refusing to quit. One could, for example, advance a utilitarian argument for such action. Naturally, a person also has the right to try to change what they think is an immoral law.
I have the same view about people who see interracial marriage as immoral: they should follow the dictates of their conscience and not take a job that would require them to, for example, issue marriage licenses. However, their right to their liberty of conscience does not override the rights of other citizens to marry. That is, their liberty does not morally warrant denying the liberty of others.
It could be argued that same-sex marriage should be opposed because it is objectively morally wrong and this would apply to officials. This line of reason has appeal because what is objectively wrong should be opposed, even if it is the law. For example, when slavery was legal in the United States it should have been opposed by everyone, even officials. But, arguing against same-sex marriage on moral grounds is a different from arguing against it on the grounds that it allegedly violates religious liberty.
It could be argued that the legalization of same-sex marriage violates the religious liberty of people in businesses such as baking wedding cakes, planning weddings, photographing weddings and selling wedding flowers.
The legalization of same-sex marriage does not, by itself, forbid businesses from refusing to do business involving a same-sex marriage. Legal protection against that sort of discrimination is another, albeit related, matter. This sort of discrimination has also been defended on the grounds of freedom of expression, which I have addressed at length in other essays.
In regard to religious liberty, a business owner certainly has the right to not sell certain products or provide certain services that go against her religion. For example, a Jewish restaurant owner has the liberty to not serve pork. A devout Christian who owns a bookstore has the liberty to not stock the scriptures of other faiths or books praising same-sex marriage. An atheist t-shirt seller has the liberty to not stock any shirts displaying religious symbols. These are all matters of religious liberty.
I would also argue that religious liberty allows business owners to refuse to create certain products or perform certain services. For example, a Muslim free-lance cartoonist has the right to refuse to draw cartoons of Muhammad. As another example, an atheist baker has the moral right to refuse to create a cake with a cross and quotes from scripture.
That said, religious liberty does not seem to grant a business owner the right to discriminate based on her religion. For example, a Muslim who owns a car dealership has no right to refuse to sell cars to women (or women who refuse to fully cover themselves). As another example, a militant homosexual who owns a bakery has no right to refuse to sell cakes to straight people.
Thus, the legalization of same-sex marriage does not violate religious liberty, at least from a moral perspective.