As expected, marriage and contraception dominated 2014’s domestic religion news headlines. At this time last year, same-sex marriage was legal in fifteen states, plus the District of Columbia. Today, 70 percent of the US population lives in a state where marriage equality prevails because, on Tuesday, Florida became the 36th state to issue licenses to same-sex couples. Six state marriage bans have been overturned but are on hold pending appeal to the US Supreme Court.
The significance of this trend is found in the overwhelming uniformity of the federal justice system. Federal courts have denied same-sex couples the benefits of civil marriage in only two of 60 or so cases. This legal consensus suggests that it will be extremely unlikely that any state Defense of Marriage Act (DOMA), which defines marriage as the union between one man and one woman, will survive the US Constitution’s Equal Protection Clause of the Fourteenth Amendment. This clause was created in 1868 to outlaw slavery and used in 1954 to dismantle racial segregation.
In 2015, the US Supreme Court will undoubtedly combine—for all states—the constitutional right to equal protection with the fundamental right to marriage. Will there be political backlash? In some parts of the country, certainly.
But for a supermajority of voters, same-sex marriage will be a nonissue. This will be true for five reasons.
First, gay rights activists have been extremely successful in taking a relationship-based approach to civil rights, meaning that they have maintained personal relationships with those who once denied them equal protections under the law.
Second, the religions have engaged in self-reform. Religious people who once restricted civil marriage to one-man-one-woman have come to accept, love, and become advocates for gay and lesbian couples in their families and communities. This is the patriotic hallmark of every rights movement: those with rights defending those without.
Third, the once fervent “defenders of marriage” were surprisingly silent when states began issuing licenses to same-sex couples—most notably in Utah. Those who disagree tacitly accepted the outcome and disarmed themselves.
Fourth, the majority has had a change of heart. Surveys show that more than one-third of the voters who once helped legalize marriage discrimination now deem it unreasonable.
Fifth, support for same-sex marriage has increased in every age bracket, not just in the younger generation.
These five trends demonstrate that a relationship-based approach to justice can lead, as it did in the case of same-sex-marriage, to a genuine change in the collective’s conscience.
The vitriol once discharged on the subject of same-sex marriage has moved to a different arena where one group is now battling another: religiously organized corporations versus women.
Can owners of for-profit corporations use religious liberty claims to refuse their employees contraception coverage? Yes, the US Supreme Court ruled in June in the highly debated Hobby Lobby case. Unlike in the same-sex marriage cases, in the Hobby Lobby case, Justice Kennedy joined the conservative wing of the court to find that Hobby Lobby was exempt from the federal contraception mandate in the Affordable Care Act.
This majority held that the federal Religious Freedom Restoration Act (RFRA) protects “persons”—and, therefore, closely held corporations (in which less than five shareholders own the majority of stocks)—from laws that substantially burden their owners’ religious beliefs.
Justice Ginsburg joined with the other three progressives on the court; in her impassioned dissent, she argued that the majority opinion misconstrued Congress’s intent. The RFRA, Ginsburg asserted, did not explicitly state that for-profit corporations could exercise religion, let alone permit owners to use their religious beliefs to claim exemptions from civil right laws that protect women from discrimination in employment.
In an interview with Katie Couric, Justice Ginsburg said, “I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief.”
Couric asked, “All three women justices [along with Justice Stephen Breyer] were in the minority with the Hobby Lobby decision. Do you believe the five male justices truly understood the ramifications of their decision?”
Ginsburg gently responded, “I would have to say, no. But justices continue to think and can change. So, I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
How? Ginsburg said, “I think daughters can change the perception of their fathers,” seemingly encouraging the daughters of her male colleagues to share their opinions with their fathers as well as inviting daughters throughout the country to engage in intergenerational dialogue to co-create an equitable society.
Perhaps this relational approach, so important in making marriage equality a reality in 2014, will eliminate the blind spots in the contraception debates of 2015.
Nathan C. Walker is associate director of the Religious Freedom Center of the Newseum Institute. This article was originally published by Sightings of The Martin Marty Center for the Advanced Study of Religion, University of Chicago Divinity School. To comment, email Editor, Myriam Renaud, at [email protected].