Clarence Thomas: ‘Decision Threatens the Religious Liberty Our Nation Has Long Sought to Protect’

Clarence Thomas: ‘Decision Threatens the Religious Liberty Our Nation Has Long Sought to Protect’

By Terence P. Jeffrey | June 26, 2015 | 12:09 PM EDT

 

(CNSNews.com) - In his dissent from the Supreme Court’s 5-4 decision in Obergefell v. Hodges, which declared that same-sex marriage is a right, Justice Clarence Thomas said that the court’s “decision threatens the religious liberty our Nation has long sought to protect.”
The First Amendment to the Constitution guarantees “the free exercise” of religion—which is not confined to “worship” that takes place within a religious building, but engages all aspects of a person’s life.
“Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect,” Thomas said in his dissent.
“In our society, marriage is not simply a governmental institution; it is a religious institution as well,” said Thomas. “Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
“The majority appears unmoved by that inevitability,” Thomas concluded.
Here is a key excerpt from Thomas’s dissent:

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.

The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422–1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution.

But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Reli­gious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.; Conn. Gen. Stat. §52–571b (2015).

Numerous amici—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so ful­filling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religiouspractice.7

Although our Constitution provides some protection against such governmental restrictions on religious prac­tices, the People have long elected to afford broader pro­tections than this Court’s constitutional precedents man­date. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional defi­nition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with poten­tially ruinous consequences for religious liberty.