Substantive Due Process as a Two-Way Street: How the Court Can Reconcile Same-Sex Marriage and Religious Liberty

Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay customers in her restaurant). Threatened with violence over her unpopular religious belief, the owner was forced to close the restaurant, uncertain if she could ever reopen. Leading up to oral argument in the same-sex marriage cases, it was reasonable to wonder whether the Indiana episode was evidence of an irreconcilable conflict between same-sex marriage and religious liberty. If so, then a Supreme Court decision in favor of same-sex marriage might leave no room for religious diversity of opinion about marriage. As a result, individuals, businesses, churches, and other religious organizations could face a world in which having unpopular beliefs about marriage would trigger a range of punishments. The argument did little to dispel that concern. When Chief Justice Roberts asked whether religious schools would be required to give same-sex couples married student housing, Solicitor General Donald Verrilli, Jr. suggested that they might. Solicitor General Verrilli also candidly acknowledged the possibility that the Internal Revenue Service would take away tax-exempt status from religious non-profits opposed to same-sex marriage, saying “it’s certainly going to be an issue.” It need not be an issue, or at least not as much of an issue as the Indiana episode and the Solicitor General’s responses suggest. There is no inherent conflict between same-sex marriage and religious diversity. As with most other issues, our society remains capable of adopting a live-and-let-live approach in which same-sex marriage is recognized as a constitutional right, but religious dissenters are neither punished for their beliefs nor forced to violate them