PEACEFUL COEXISTENCE

Commissioners’ Statements
105
Perhaps recognizing how its reasoning may be used, the majority attempts, toward
the end of its opinion, to reassure those who oppose same-sex marriage that their
beliefs will be respected. We will soon discover whether this proves to be true. I
assume that those who cling to old beliefs will be able to whisper their thoughts in
the recesses of their homes, but if they repeat those views in public, they will risk
being labeled as bigots and treated as such by governments, employers, and
schools. 292
There is no reason to doubt the Justices’ vision of the future. The majority’s findings and
recommendations lend credence to the Justices’ warnings.
VIII. Why Should Religious Liberty Take Precedence?
The core of the dispute between partisans of sexual liberty and traditional religious believers is
whether the two rights are of equal importance. In our constitutional order, the first reason that
religious liberty takes precedence over sexual liberty is that this is enshrined in our Constitution.
The First Amendment establishes the right to free exercise of religion, free speech, free
association, and freedom of assembly. It does not establish the right to coerce other people into
expressing approval of one’s self-expression.
But why does the Constitution enshrine religious liberty as a “first freedom”? And why should
we continue to treat it as a fundamental right that often trumps conflicting rights or government
interests? 293 After all, religious liberty sounds nice but nondiscrimination sounds nice too. The
answer is that we accept that religious claims may actually be true, and if they are true, a
person’s duty to God may be seen as weightier than his duty to the state. 294 It is not
unreasonable to believe in God, and it is impossible for the government or any person to remain
truly undecided on the question. Either the government will act as though God may exist, or the
government will act as though God does not exist. And for constitutional purposes it seems
likely that the Framers assumed that God did exist though they differed mightily about specifics,
and that is why they enshrined religious freedom in the First Amendment. 295 If the Framers
292
Obergefell, 135 S.Ct. at 2642-43 (Alito, J., dissenting).
293
See Brian Leiter, WHY TOLERATE RELIGION 7 (2013).
294
Michael Stokes Paulsen, Is Religious Freedom Irrational? Reviewing Why Tolerate Religion? By Brian Leiter,
112 MICH. L. REV. 1043-44 ( 2014).
295
Michael Stokes Paulsen, The Priority of God, 39 PEPP. L. REV. 1159, 1203-04 (2013).
We protect religious liberty on the premise that God is real and that the true priorities of God trump the ordinary
commands of man. . . .