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When Rights Collide: Same-Sex Marriage vs. Freedom of Religion

The Supreme Court’s June 2015 Obergefell v. Hodges decision held that the fundamental right to marry extends to same-sex couples, a small minority of Americans. Among other things, the right to same-sex marriage includes constitutionally guaranteed rights of inheritance and legal parental status for children.

From an objective, public interest-focused point of view, the partisan left vs. right dispute over same-sex marriage sheds no light on the situation.

Not surprisingly, most social liberals supported the Obergefell decision, while most social conservatives opposed and criticized it. Multiple reasons are given for supporting or opposing same-sex marriage (e.g., the decision is or is not moral, constitutional, or an attack on marriage).

Liberal versus conservative disputes over the impact of laws on personal and economic freedoms are not unusual. From an objective, public interest-focused point of view, the partisan left vs. right dispute over same-sex marriage sheds no light on the situation.

Social liberals and conservatives view same-sex marriage (“SSM”) from their subjective points of view. Both sides with their mutually incompatible perceptions and opinions cannot both be mostly right about the net impacts of Obergefell on affected freedoms or the public interest.

From an objective, public interest-focused point of view, the net impact of Obergefell on religious freedoms for affected groups and society as a whole needs to consider all major affected freedoms and groups, with reasonable regard for present and future impacts on society.

 

Impacts on Freedom of Religion

There is no generally accepted way to analyze impacts of a single law or a constitutional right on affected freedoms or the public interest. Any rational assessment needs to be transparent and conclusions about freedom impacts have to be based on fact and logic. A reasonably objective assessment of Obergefell’s effects on personal freedom can be based on the following considerations:

(1) Considering whether each affected freedom or right is constitutionally fundamental or not;

(2) Determining whether (i) impacts are high, intermediate, low or neutral, (ii) impacts are positive* or negative, and (iii) the approximate number of people in major affected groups;

(3) Current and projected public opinion; and

(4) Whether an overall net freedom gain or loss best serves the public interest based on objectively balancing all significant competing considerations and interests.

* A positive impact on freedom means that (a) a personal freedom increases or is new and/or (b) the freedom’s exercise is easier or less costly due to legal (not societal, group or personal) restrictions. A negative impact means the opposite.

 

Different Groups and Different Impacts

Freedom of religion and SSM rights are fundamental constitutional rights, so they are on an approximately equal footing in terms of constitutional importance. The intensity of personal beliefs, e.g., the personal belief that absolute religious freedom is paramount, while SSM rights are not particularly important (or vice versa), are not considered because that introduces needless subjectivity into the analysis.

Estimates of the size of the largest American groups that SSM rights might affect are based on the following:

  1. There are about 321 million total U.S. residents, consisting of about 310 million citizens (Americans) and about 11 million non-citizens
  2. About 77% of Americans are adults (about 239 million) and about 23% are under 18
  3. About 3.8% of adult Americans (about 9 million) self-identify as LGBT (assume that nearly all LGBT support legalized SSM (> 98% assumed)), and about 230 million are heterosexual adults
  4. About 77% of adult Americans (about 184 million) identify with a religious faith or group, while about 55 million identify with no religious faith or group
  5. About 55% of adult Americans (about 135 million) favor legalized SSM, while 45% or about 104 million oppose SSM (this assumes that all of the 6% of Americans who have no opinion are in opposition to SSM but refuse to say so in polls – 39% of adult Americans oppose SSM based on recent data)

Obergefell’s SSM and religious impacts on SSM supporters: The table below summarizes freedom of religion impacts of Obergefell on large groups of American adults that support SSM. Details for the basis of group sizes are here.

Table 1

For the 9 million Americans who identify as LGBT (group 1), Obergefell has a high positive impact on their fundamental right to marry because it created a uniform nationwide right the first time. Since 77% of adult Americans identify as religious, that proportion to self-identified LGBT Americans means about 7 million (9 million x 0.77) who either reconcile their support for SSM with the religious beliefs of their religious group or affiliate with a religious group that supports SSM.

For same-sex couples that belong to a (i) religion or (ii) church, synagogue, temple, mosque, monastery, congregation or other religious unit (collectively a “religious group”) that supports SSM (group 2), there is no burden on those people’s religious rights because they can have a religious marriage ceremony in their religious group.

An estimated 3 million Americans in group 3 are assumed to belong to a religion or religious group that refuses to conduct a SSM ceremony due to opposition to SSM on religious grounds. For group 3 Americans, their own religion or religious group’s doctrine imposes a low negative impact on the exercise of their personal religious freedom because they can join a different religion or religious group that accommodates their SSM rights.

A subset of group 3 Americans, assumed to be < 0.5 million, will be unable to find a religious group within their own religion that accommodates their SSM rights. Those people experience a moderate burden on their religious freedom and/or SSM rights because they are forced to change their religion or forego a SSM marriage within their chosen religion.

The burden on SSM rights for this subgroup arises when a religious marriage ceremony is desired within a religion that opposes SSM, but no religious alternative is readily available.

However, for group 3 LGBT Americans who can switch their religion but choose not to do so, assumed to be < 0.25 million, the burden on their religious and SSM rights can rationally be considered to be low, not moderate, because that choice is personal and entirely subjective.

In other words, people who put themselves in untenable situations when there are reasonable alternatives, i.e., changing their religion or finding an accommodating religious group within their chosen religion, bear personal responsibility for their choices and that is logically included in the impact analysis.

Group 4 consists of about 2 million LGBT Americans, which assumes that the 23% proportion of all adult Americans who identify with no religion applies to Americans who identify as LGBT. Assessing freedom impacts for Americans in group 4 is straightforward. Those people experience (i) no burden on their freedom of religion because they have no religious practices to burden and (ii) no impact on their SSM rights due to any religion’s beliefs regarding SSM.

Applying the same analysis to the 126 million heterosexual American SSM supporters in groups 5-7 gives the impact results shown in the table.

Group size estimates may be in error to some extent. Such errors would change group sizes accordingly, but those changes would not change freedom impact assessments because the same logic regarding impacts applies regardless of group size.

Obergefell’s impact on SSM opponents: The Table below summarizes freedom of religion impacts of Obergefell on large groups of American adults that oppose SSM. The analysis here assumes that the numbers of Americans who identify as LGBT but oppose SSM on religious grounds are less than 2% of the 9 million Americans who self-identify as LGBT, i.e., < 180,000 people.

Table 2

These rights impacts assessments are based on essentially the same analysis applied to groups of SSM supporters. For example, Americans in group 8 are either free to change their religious group or religion or they can stay with a religion or religious group by personal choice. Similarly, Americans in group 10 experience no religion or SSM rights burden because they are non-religious and are not forced by law to attend any SSM marriage ceremony.

A final consideration is projected public sentiment. Due to demographics and increasing overall acceptance, the level of public support for SSM is likely to increase over time. Public support could reach 65-75% in time.

To assess overall impacts of the Obergefell decision on the public interest, the analysis needs to be expanded. How Obergefell affects personal freedoms in the economic context are not considered nor does the foregoing consider how the religious and economic contexts together fit into the bigger question of how Obergefell affects the public interest as defined before from an objective point of view (here, here). Those concerns will be addressed in a subsequent article.

 

Conclusions

Based on the forgoing analysis of Obergefell, important conclusions can be drawn. First, the heated assertion that the practice of SSM rights in the religious context imposes severe or major burdens on the freedom of religion is false.

From an objective point of view, the burdens are low at worst, and for most Americans, such burdens are either nonexistent or burdens can be imposed on both religious SSM supporters (the larger group) and opponents by religious dogma that opposes SSM.

Exercise of personal freedoms often affect different people in different ways. That fact usually receives little or no attention from the mainstream media or partisans on either side of the dispute.

The two-party system ... has failed to honestly inform the public about the divisive SSM topic and the Obergefell decision.
Another key conclusion the analysis supports is that the two-party system, including the mainstream media, has failed to honestly inform the public about the divisive SSM topic and the Obergefell decision.

The two-party system deserves a grade of ‘F.’

A failure to inform the American public is not the least bit surprising. Dissident Politics has argued before, and argues again, that the point of political rhetoric in the two-party system is advocacy to win arguments. Honestly informing the public so that people can draw their own informed conclusions is not the goal of political rhetoric.

On the contrary, defense of the two-party system depends on a deeply divided, misinformed public. The two-party system distorts both facts and logic to fit liberal or conservative ideology, win arguments and maintain distrust and hostility among Americans.

The point is to maintain a corrupt, failed status quo.

Not surprisingly, most groups and individuals on either side spin the story to fit their own political or religious ideology, and/or their political or economic self-interest. That form of “debate” unjustifiably ignores or downplays facts and arguments from the opposing side.

Sadly, the SSM political fight is more subjective fantasy than unemotional, fact-based objective analysis. This dispute is just like most partisan disagreements in politics: it is mostly subjective propaganda and therefore harmful to the public interest.