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Today, Kim Davis—the Kentucky clerk who went to jail for refusing to issue same-sex marriage licenses—returned to work, and, at least for now, the problem of same sex marriage in her county seems to be resolved. However, this is not the last of such problems, as more similar instances are sure to happen. The problem of religious liberties is not a new one, and it has long been settled that employers (public and private) are required to provide “reasonable” accommodations for the religious beliefs of their employees. As one example, many Jewish people do not work on Saturdays. As another example, Abercrombie and Fitch has to accommodate head scarf coverage for the Muslim employees at its stores.
What constitutes “reasonable” accommodation is, of course, a function of the culture and tradition of the particular locality. The Jewish Sabbath or the Muslim head scarf are not much cause for controversy since most people agree, in ballpark, on what reasonable demands and reasonable accommodation constitute in those contexts. Not so in the case of same sex marriage. In fact, not only is there an almost even population divide on both sides of the issue, individual States vary greatly in their positions from those in the South that strongly oppose same sex marriage to those in the North-East that strongly support it. Therefore, it is not surprising that there are significant differences in what constitutes “reasonable” religious beliefs, and what constitutes “reasonable” accommodations under the values and cultures of different States.
Our unique Constitutional system was specifically designed to address the problem of differences between states and to provide an enduring union by accommodating the differing values, preferences and demographics of various States. In particular, the States maintained their autonomy to decide all internal matters within their borders unless they related to inter-state commerce or to relations with foreign nations. While it is true that the Constitution provides certain limitations on what the States can do—including on issues of equal protection—the Constitution, like any other contract, only protects what those who entered into this contract by ratifying it intended it to protect. A contract cannot be interpreted more broadly than the parties who entered into it intended to. In the case of same sex marriage, it is undisputed that the people who ratified the Constitution and, later, the Fourteenth amendment did not intend the “equal protection” clause to extend to same sex marriage. As Justice Scalia noted in his dissent:
[W]e need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.
Supporters of the Supreme Court’s same sex marriage ruling maintain that the Constitution is a living document and must be interpreted in accordance with the evolving and ever-changing culture of the society. That argument, however, suffers from several flaws. First, “contract interpretation” is only an issue when the intent of those who entered into the contract is not clear, and the Court has to resolve ambiguity in what the parties intended. Nevertheless, let us assume, arguendo, that it was the Court’s role to interpret the Constitution based on an evolving culture. That, however, is an impractical task. The United States is a diverse country with potentially 50 different cultural points of view. What State should the Court use as its point of reference? A majority of States? Even if that were possible to determine with reasonable certainty, that is not what the Supreme Court did in its same sex marriage ruling. In fact, only a handful of States had legalized same sex marriage through legislative action, and the rest were forced to do so through various court decisions.
There is a reason why our Constitution provides full autonomy to the States except under narrow circumstances. This is a necessity in a large country with hundreds of millions of people and vastly different cultures. If the culture and values of the U.S. society as a whole have in fact changed so much so as to justify forcing new values on a minority of States, the Constitution specifically envisions a mechanism for that: Constitutional amendment. By way of example, suffrage was not achieved by re-writing the Constitution so that its “equal protection” clause would protected the then newly created right of women to vote. Rather, a Constitutional amendment was passed in order to implement such a value nationally.
When five unelected and unrepresentative judges determine that the values of the United States as a whole have changed, or, worse, that they must change, and then impose those values on all of the country, the society remains divided on the issue. There would be deep divisions among various States on what religious beliefs are “reasonable,” and on what accommodations for a person’s religious beliefs are “reasonable,” among other things. Most importantly, however, the sector of the population whose centuries old value system has just been outlawed by the United States Supreme Court would expectedly exhibit a large degree of opposition and resilience because it has been forced to abide by an interpretation of a contract (Constitution) that their founding fathers and those who ratified the contract (Constitution) never intended and agreed to. The Constitution does not protect all things that one side or the other considers good; it only protects what the parties who contracted it intended to protect. When the liberal left rejoices in its “victory” of forcing its values on half of the U.S. population and a majority of the States, it should posit the situation when, for example, the right would force its opposition to abortion on all of the U.S. society.
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