Writing in The Catholic Thing, Professor Hadley Arkes, in “The Paths of Resistance,” offers two possible (legislative) steps that can be taken in light of the Court’s decision in Obergefell v. Hodges. Some excerpts:
“In the aftermath of the Supreme Court’s ruling on same-sex marriage, two lines of response may be open to those who are committed to a serious effort to resist and overturn that decision. The first and most direct line is to come forth with a statute that seeks to limit or even challenge the substance of the decision…But a second path is to move quickly now to the side of those who are most directly and gravely challenged: the religious schools, hospitals, charitable organizations that refuse to recognize same-sex marriages in their benefits, or in the arrangements made, say, for ‘married students.’”
“With an apt sense of the moment, Sen. Mike Lee of Utah has filed a bill in that vein, the ‘First Amendment Defense Act.’ The bill was cast in terms of the First Amendment in order to pick up the theme of protecting religious freedom. The bill was also cast solely as instrument to protect people against the agencies of the federal government…Sen. Lee’s bill bars the federal government from taking ‘discriminatory action against a person. . .on the basis that such person believes or acts in accordance with a religious belief or moral conviction [italics added] that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.’”
“It is a tricky matter, to say the least, to excuse people from the obligation to obey a law when they claim a ‘moral objection’ to it…But strictly speaking a ‘law’ seeks to forbid what is wrongful and enjoin what is rightful. Anything claiming the standing of law will require a moral ground to show why it is ‘justified.’ To grant an exemption on moral grounds from a policy proclaimed by the Supreme Court is a way in which Congress can still make the point that the Court got something strikingly wrong. And that is a good start.”
Read the whole piece here.