Heritage Panel Analyzes Obergefell Decision

Aaron Bandler
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Posted: Jun 30, 2015 6:05 PM
Heritage Panel Analyzes Obergefell Decision

The Heritage Foundation hosted policy and legal experts inside the Allison Auditorium on Wednesday to discuss the fallout of Obergefell v. Hodges, where the Supreme Court ruled that gay marriage is legal throughout the country.

The panelists consisted of Heritage senior research fellow Ryan Anderson, Judicial Crisis Network chief counsel and policy director Carrie Severino, and Gene Schaerr Law Offices principal Gene Schaerr. Roger Severino, the director of the DeVos Center for Religion and Society at Heritage, moderated the panel. The panel all agreed that the ruling in Obergefell was incorrect.

Carrie Severino began by saying that Justice Anthony Kennedy's decision was based on the fundamental right to marry. While Severino agrees that there is a right to marry, it based on the precept that marriage is the union between a man and a woman.

"It's dangerous when we redefine the terms that we're actually dealing with because we could easily shift the meaning," Carrie Severino said, pointing out that the term "speech" could then be redefined. "The challenge here is that he redefined the term 'marriage' in the process of attempting to uphold the fundamental right to marry."

Kennedy based the decision off of four principles of marriage derived from previous cases- that it's individual autonomy through personal choice, unique two person union, it safeguards of children and families and it forms a keystone to the social order. Severino believed that Kennedy "cherry-picked" the principles he examined.

"By assuming the conclusion already, he chose the principles that would support it," Severino said. "It's interesting also to see that he didn't actually- in my opinion- choose those principles to overlap perfectly well because he does cite the rights of child bearing, procreation and education, and it is simply difficult to understand how a particular right to procreation has nothing to do with an opposite-sex union when that's obviously how procreation happens."

Severino also pointed out that Kennedy didn't do traditional Equal Protection Clause analysis under the 14th Amendment since he didn't discuss the level of the scrutiny- such as strict or intermediate- that should be applied to this particular case.

The four dissenting judges focused on a few major themes, with one being that the decision is not accurate from a legal matter, according to Severino.

"The Constitution is completely agnostic as to how marriage is defined," Severino said, pointing out that even Kennedy said as much in the Windsor case a couple of years ago.

The dissenters also highlighted religious freedom concerns.

Schaerr said that while Kennedy's majority opinion was the most respectful to religious freedom, his ruling "launched some grenades that are still in the air," saying there are 12 threats to religious liberty from this ruling which he calls the "dirty dozen."

The "dirty dozen" include tax-exempt status, pastors licensed by the state, religious school housing policy, religious school licensing and employment.

During the oral arguments of Obergefell, Justice Samuel Alito asked Solicitor General Donald Verrilli about how tax-exempt status of religious organizations would be affected if the court were to rule in favor of gay marriage. According to Schaerr, Verrilli responded, "I can't deny Justice Alito that that's going to be an issue."

In order for pastors to have the authority to perform a marriage, they need to be licensed by the state. According to Schaerr, this prompted Justice Antonin Scalia to ask that if a pastor were to refuse to recognize a same-sex marriage, "Are they going to be denied the ability to marry people and have those marriage recognized by the state?"

Religious colleges depend on ability to get accredited in order to receive federal funding and for students to get jobs. 

"If same-sex marriage is the law of the land... isn't there a risk that accreditors will be pressuring religious colleges to recognize same-sex marriage?" Schaerr asked.

Schaerr also pointed out that some religious organizations make decisions on employment based on religion, which would be put into doubt by the Obergefell decision.

When it was Anderson's turn to speak, he said the cultural question is the most important in the long run, and that the pro-marriage movement is in the same position as the pro-life movement was when Roe v. Wade was decided.

"We've never accepted Roe v. Wade as the final word on abortion or the Constitution," Anderson said.

He pointed out that after Roe, there was a movement to protect the consciences of those who didn't want to believe in abortion. There is also the March for Life every year on January 22 and that the list of pro-life groups that have sprung up has been "remarkable."

"The same thing culturally needs to happen with this Supreme Court ruling," Anderson said. 

Anderson said that marriage places a limit on the state, so the state does not have the right to redefine marriage.

Kennedy's philosophy of marriage is a result of the breakdown of the American family, Anderson said. Anderson believes that marriage for a man and woman to commit to each other so a child has a mother and a father.

"How do we as a culture rebuild a strong marriage culture insisting that fathers are essential when Anthony Kennedy has redefined marriage saying that fathers are optional?" Anderson asked.

During the Q&A period, a member of the audience asked Anderson if he believed the government should be taken out of marriage. Anderson didn't like that idea, saying that marriage was never purely a religious institution.

"While your church can marry you, your church can't divorce you or alimony you," Anderson said, also pointing out that custody battles and other legal matters aren't take care of by the church. "You will simply explode the state on the back end."