A lucky circuit breaker built into the American system of government is the fact that, even if the courts fail to stand up for the rights of individuals, you may be all right anyway, depending on where you live.
Our courts set a floor for human rights, not a ceiling. If the U.S. Supreme Court tomorrow ended its insistence that states permit same-sex marriage, protect abortion rights, integrate their schools or, as has already been demonstrated, heed the Voting Rights Act, that would be dreadful, but life would change only in states where legislatures or judges wanted it to. States that wanted to maintain proper levels of equal rights could do so.
There may be some serious deciding required pretty soon.
Well before the U.S. Supreme Court declared that it was unconstitutional to deny same-sex couples the right to marry, the trend among states was heading toward marriage equality. Legislation passed and court rulings made at the state level not only preceded the 2015 Obergefell v. Hodges decision, they also laid the moral and legal groundwork for it.
Those of us who saw the simple justice of that ruling might have hoped the matter was settled nationwide.
An alarm that the marriage equality battle might not be over was sounded Monday, when the Supreme Court rejected an appeal from Kim Davis, that county clerk in Kentucky who got into a peck o' trouble for refusing to issue marriage licenses to same-sex couples even after the court had said she had to.
The bad news was that two of the justices, Clarence Thomas and Samuel Alito, spelled out how they agreed to toss the case only because Davis asked the wrong way. They said that, instead of pleading “qualified immunity,” that tool used by some police officers who really shouldn’t have shot that person, Davis should have sought exemption from the law on religious freedom grounds.
That’s two votes to overturn marriage equality as a constitutional right, to backtrack on what Thomas called the court’s “cavalier treatment of religion.” Add high court nominee Amy Coney Barrett to the other Obergefell dissenters and you have a pretty solid 6-3 majority in favor of a return to law based on unreasonable fear of gay people.
Of course, Thomas and Alito are wrong about religious freedom. A judicial ruling — or a statute passed through the democratic process — in favor of same-sex marriage rights in no way violates the religious freedom of a single human being. To claim otherwise is not to seek religious freedom, but to back theocracy, the rule of civil society by religious dogma.
If a law or ruling only makes sense to the religious, or to followers of a certain faith, it is something a constitutional democracy cannot tolerate. It has to be a policy that could be supported by members of any religion, or of none.
In short, it has to pass the atheist test.
It’s not hard. As energized as the American civil rights movement was by one strain of religious tradition (and opposed by another), even Martin Luther King Jr.’s “I Have a Dream” speech was 95% secular, a sermon that explicitly took as its text, not the Bible, but the Declaration of Independence.
Most opposition to abortion rights also fails to muster any reasoning that isn’t based on religious teachings. Which makes it an argument without merit in a free society.
It is telling that the argument raised by, among others, Sen. Mike Lee of Utah, is that the Equal Rights Amendment is a bad idea because if women have equal rights before the law, it will be impossible to prohibit abortion. It is fair to ask if opposition to abortion leads to opposition to legal equality for women, or follows from it.
If a far-right Supreme Court takes back the constitutional guarantees of marriage equality and abortion rights, that will change things only in states that choose to end those rights. We can guess what might happen in Utah — unless our market-oriented Republican leaders realize how unpopular it will be for the rest of the modern world to do business in such a backward state.
George Pyle, editorial page editor of The Salt Lake Tribune, has been nattering on about marriage equality since 1993.