PEACEFUL COEXISTENCE

102 Peaceful Coexistence Report
of racial discrimination. 277 Then in Obergefell v. Hodges the Court delivered the killing stroke to
state support for traditional marriage, grandly declaring, “The Constitution promises liberty to all
within its reach, a liberty that includes certain specific rights that allow persons, within a lawful
realm, to define and express their identity.” 278 I join Justice Scalia in declaring that if I were
forced to sign onto an opinion that began with such meaningless twaddle, I would put a bag over
my head. 279 Whatever it might be, Constitutional law it is not.
There is likewise little reason to doubt Justice Scalia’s prediction that the expanded right to
sexual liberty will stop at same-sex marriage. Justice Roberts too has come to share Justice
Scalia’s gloomy outlook on the prospective constitutionalization of a right to polygamy. 280
There is little reason not to share their pessimistic outlook. For example, in late 2013, a federal
district court ruled that Utah’s prohibition of polygamy had no rational basis and was therefore
unconstitutional. 281 Almost simultaneously there has been a raft of articles in mainstream
publications discussing the prevalence of polyamory and suggesting it is “the next sexual
revolution.” 282 As alternative lifestyles continue to gain public acceptance, they too will come
under the aegis of antidiscrimination laws and create their own religious liberty conflicts.
More pertinent to this statement is the threat Obergefell poses to religious liberty. There have
already been many conflicts between same-sex marriages and religious liberty. Now that samesex
marriage has been elevated to the status of a constitutional right these conflicts will become
more common and more severe. In his dissenting opinion, Chief Justice Roberts objected that
same-sex marriage was nowhere contemplated in the Constitution. Rather, the Court’s decision
in Obergefell reflected the policy preferences of a majority of the Court, which through the
exercise of raw judicial power they elevated to the status of a fundamental right. 283 Justice
Scalia echoed the Chief Justice’s concerns:
277
Children born when Romer was decided in 1996 turned 18 in 2014.
278
Obergefell v. Hodges, 135 S.Ct. 2584, 2593 (2015)(Kennedy, J.).
279
Id. at 22 (Scalia, J., dissenting).
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution
promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful
realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States
has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of
the fortune cookie.
280
Id. at 2621-22 (Roberts, C.J., dissenting).
281
Brown v. Buhman, 947 F.Supp. 1170 (D.Utah 2013).
282
See, e.g., Kristen V. Brown, Web of Love, S.F. CHRON., Mar. 2, 2014, available at
http://www.sfchronicle.com/business/item/web-of-love-27625.php; Emanuella Grinberg, Polyamory: When three
isn’t a crowd, CNN, Oct. 26, 2013, available at http://www.cnn.com/2013/10/26/living/relationships-polyamory/.
283
Obergefell, 135 S.Ct. at 2612 (Roberts, C.J., dissenting).