Is interracial marriage about to be illegal again?
Is one’s religious beliefs a license to discriminate? In the recent case of Davis v. Ermold, Davis, a county clerk in Kentucky, refused to issue marriage licenses to same-sex couples, and ordered others in her office not to issue them. Her edict was based upon her personal to same-sex marriages — she said it violated her religious beliefs.
The 6th Circuit found her actions unlawful. The Supreme Court denied her petition for writ of certiorari, and the Circuit Court’s decision stood. Unusually, Supreme Court Justice Thomas took this opportunity to write:
“Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last. Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws.”
As I read Justice Thomas’s statement, which Justice Alito joined, the case of Loving v. Virginia came to mind. Why? Because the Lovings’ criminal conviction for violating the law against interracial marriage was justified in at least on judge’s mind on religious grounds. The Virginia Circuit Court, in pronouncing the sentence said:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
The judge in Caroline County was not the only one to hold such beliefs. Religious tenets were frequently the offered reason for discrimination and the judge’s argument was “part of a long line of segregationist attitudes that tied religion to opposition to racial mixing.” (This links to Professor Leora Eisenstadt’s article, a good overview of religion and discrimination.) The use of religion to uphold the right to discriminate on the basis of race was still prevalent in the 1960’s: Senator Robert Byrd of West Virginia opposed the Civil Rights Act of 1964 because “God’s statutes…recognize the natural order of the separateness of things.” (88th Cong. Rec 110:13,206).
Does Thomas’ argument in Davis apply equally to the religious belief that interracial marriage is against God’s plan? In the Loving case, the Court addressed and rejected the religious arguments offered during oral arguments. Isn’t such “cavalier treatment” similar to what Thomas is complaining of in Davis?
What if Thomas’s words were applied in the Loving case? Would he have found that the sheriff in Carolina County who could no longer arrest those in interracial marriages as one of the first victims of this Court’s cavalier treatment of religion in its Loving decision. Would he have said that, due to Loving, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Loving and its effect on other anti-discrimination laws.”
Now, few people openly argue that Christian beliefs supports the separation of races. But what if they start to do so? What if Christians find in the Bible the same support fur such beliefs that they found and relied upon for so many years in our country? What if other religions, even new religions, start finding beliefs that require them to separate (and therefore discriminate against) people based upon race, or sex, or religion? Can a county clerk refuse a marriage certificate to a Muslim and Christian who want to marry based upon a belief that Christians should only marry Christians? Or because they believe Muslims should only marry Muslims? (Such an argument, by the way, was used by the Justices in Loving to reject the religion argument). Should the clerk be allowed to refuse a marriage license to people who live together before marriage because they believe you should not have sex before marriage? How about refusing a marriage license to a woman who had an abortion until she repents? How far does Justice Thomas and Justice Alito think religious liberty should let a person acting on behalf of the state go?
Should whether you get a marriage license, or any other state service, depend upon the religious beliefs of the individual who happens to hold the job? Or should whether you have a job in which you act on behalf of the state depend upon your ability to follow the law for the benefit of all citizens, not just those who act and believe in line with your personal religious beliefs?
