(Notes for my presentation at the 2nd Annual International Forum On Law and Religion. Theme: Religious Freedom: Rights, Trends and Opportunities; held June 14, 2018, at the University of the Philippines BGC, Taguig, Metro Manila)
“Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.”
Those were the words of US Chief Justice John Roberts, expressing disappointment in the Obergefell ruling.
Roberts’ dissent is mentioned for interestingly channeling another case, one heard long ago. When people were saying the same exact thing: rule favorably on it now so people can move on and eventually come together in this issue.
In short, Roberts’ dissent was a subtle riposte to that clamor: Not going to happen.
The older case was Roe v Wade, where Justice Blackmun thought that a pro-abortion ruling would rid the country of its divisiveness and make people come together in accepting abortion.
It didn’t happen then, it won’t happen now.
Same with Obergefell.
Instead, if indeed history tells us anything, the lines have been drawn more strongly and people’s determination to sift right from wrong invigorated.
The recent Masterpiece Cakeshop case (whose owner Jack Phillips refused to create a cake specific for a gay “wedding”) is but one of a long line of incidents demonstrating the progressive hostility to religion.
But also of religion’s persistence.
In demanding that Phillips bake for the gay couple, the Colorado Civil Rights Commission’s clear dislike for Phillips was evident.
“One commissioner suggested that Phillips can believe ‘what he wants to believe,’ but cannot act on his religious beliefs ‘if he decides to do business in the state.’”
Another: “Freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”
Thankfully, the US Supreme Court would have none of this nonsense. In a ponente by Justice Anthony Kennedy (of all people), he asserted that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”
Of course, the ruling in Masterpiece is actually quite narrow and did not address the fundamental question of religion’s standing vis-à-vis other rights. What it did, gratifyingly for now, did assert — as Princeton’s Robert George pointed out in his New York Times Op-ed — is this:
“Business owners and others have no obligation under the Constitution, nor can one be imposed by statute, to confine their religion to the private domain. On the contrary, they have the constitutional right to proclaim and act on their religious beliefs in the public domain, including in the domain of commerce.”
In the Philippines, after the battering that religious rights have had (see the RH Law and St. Scholastica cases), religious freedom has been having a resurrection (pun intended), of sorts.
In Celdran vs. People of the Philippines, the Court of Appeals ruled: “religious freedom, although not unlimited, is a fundamental personal right and liberty, and has a preferred position in the hierarchy of values. It has been said that the religious clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good.”
And quite interestingly, the CA would make this sharp declaration: “There is a reasonable distinction between those who have a religion and those who do not.”
The case, though, is awaiting final ruling from the Supreme Court.
In any event, movie fans will be aware of the “tenth man” rule: to avoid surprises and be ready for any eventuality, if nine people agree on something, a tenth man is assigned the responsibility to disagree and suggest alternatives.
Am reminded of the tenth man because Charles Krauthammer, who as we speak has only a few days to live, had this to say of the Catholic Church:
“I think years from now, and decades, people are going to look back on the issue and commend the Catholic Church for having held its own, very unpopularly, when there was this sweep and wave of legalizing abortion and to make it like an appendectomy; where the Church was the one institution that would not waver, despite the ridicule and the mockery and the attacks it suffered.”
Of course, the Church does not disagree for the sake of disagreeing.
It does so because it believes it holds certain truths.
And faith tells me that it holds such truths when speaking of divorce, same sex “marriage,” euthanasia, contraceptives, and abortion, amongst many other issues.
And for those who realize how high the stakes are, if history does tell us anything, it’s a matter of gratitude then that religion maintains its incorrigible persistence.
Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.
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