Professor Mark Hill QC is an adjunct professor at Cardiff University, Pretoria University, Notre Dame University Law School, Sydney and King’s College, London; and is a fellow at the Center for the Study of Law and Religion at Emory University, Atlanta. He practices at the Bar in London and sits as a judge on the Midland Circuit.
The hallmark of good judgments is their brevity. Short sentences promote clarity. The best sentence in Obergefell v. Hodges is written by Chief Justice Roberts. It comprises seven words: “But this Court is not a legislature.” Unfortunately Roberts’s was a dissenting opinion. By a majority of 5:4, the US Supreme Court effectively legislated to permit gay marriage. I am not opposed to same-sex marriage. On the contrary, I am a champion of LGBT+ rights. Nor am I opposed to judicial activism. The common law is the better for the occasional gentle nudge. My unease, viewed from the UK, is with the starkness of the outcome and its failure to accommodate religious sensibilities. As Justice Scalia remarks in his barnstorming dissent,[1] the consequence of the decision was that the people of America lost “the freedom to govern themselves.”
First, to clear away some undergrowth. The US has a federal structure. The UK does not. The US has a written constitution and a Supreme Court expressly empowered to enforce its terms. In the United Kingdom, the governing principle is one of Parliamentary sovereignty where the legislator is king, and where the Supreme Court’s function is to interpret and apply and the law, not to adjudicate on its constitutionality. A recent power under the Human Rights Act 1998 enables the UK Supreme Court to declare legislation incompatible with the European Convention on Human Rights, but it cannot strike it down. The government has the choice of amending the statutory provision to remove the incompatibility or to do nothing, in which case the legislation remains in force. Parliament is supreme. Whilst American law prohibits discrimination on the basis of religion,[2] the range of “protected characteristics” in the UK under the Equality Act 2010 (which is based on EU Directives) is very broad and includes sexual orientation as well as religion. [3]
In the United Kingdom couples may marry in a civil ceremony conducted by a state official or in certain authorized places of worship. Everyone, irrespective of their religious affiliation, has a legal right to be married in the parish church where they live, using an Anglican rites. There is a corresponding duty on Church of England clergy to solemnize such marriages.[4]
The move to permit same-sex marriage in the United Kingdom was effected via the intermediate stage of civil partnership, a status created under the Civil Partnership Act 2004. In consequence, the Marriage (Same-Sex Couples) Act 2013 , was a sophisticated and nuanced piece of legislation, formed as a result of intense and lengthy parliamentary debate and public lobbying. The architecture of the Act is simple. It declares the marriage of same-sex couples to be lawful, and makes consequential amendments to a raft of existing legislation; but most importantly, it also promotes religious liberty, by preventing faith groups, such as the Church of England, from being compelled to solemnize same-sex marriages which are contrary to their doctrine. Accordingly, the 2013 Act sought to steer a course between gay rights and equality on the one hand, and freedom of religion and doctrinal autonomy on the other. The success of the compromise can perhaps be measured from the fact that neither side was entirely satisfied.
Justice Kennedy, writing for the majority, acknowledged that “marriage is sacred to those who live by their religions” and constitutes a union of one man and one woman which has “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” He recognized that “there may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate.” But he rejected the argument, recording: “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” And in a casual throw-away sop to people of faith, he stated: “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
But in his powerfully reasoned dissent, Chief Justice Roberts affirmed that “under the Constitution, judges have power to say what the law is, not what it should be.” In this case, he said, “the majority exalts the role of the judiciary in delivering social change.” The role of persuasion in social change came to an abrupt halt when the majority closed the debate and “enacted their own vision of marriage as a matter of constitutional law.” These judges confused their “own preferences with the requirements of the law.” Unlike Justice Kennedy, the dissent of Chief Justice Roberts shows an awareness of the consequences because the majority decision:
… creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution [by the First Amendment].
It is instructive that other national courts have not resorted to the level of judicial overreach to be found in Obergefell v Hodges. Take the South African experience. The matter came before its Constitutional Court in Minister of Home Affairs v. Fourie and Another, and the leading judgment was delivered by the distinguished human rights activist Albie Sachs, appointed a Justice of the court in 1994. Declaring the prohibition on same-sex marriage to be unconstitutional, he exercised judicial deference by affording Parliament twelve months to effect such changes as it considered appropriate. Although Justice O’Regan dissented on this matter, it was eminently prudent on Justice Sachs’ part to allow the legislature to frame the reform to the law as it saw fit on a matter that touches on deep public and private sensibilities.
I believe that Parliament is well-suited to finding the best ways of ensuring that same-sex couples are brought in from the legal cold.
As already stated, in the United Kingdom, the decision to permit same-sex marriage was taken by the legislature, not the judiciary. This accords with an established practice or convention of judicial deference and parliamentary sovereignty. On the subject of euthanasia or mercy killing, in the case of R (on the application of Nicklinson) v. Ministry of Justice, the President of the Supreme Court, Lord Neuberger observed “the mere fact that there are moral issues involved plainly does not mean that the courts have to keep out.” However rather like Justice Sachs in the South African Constitutional Court, Lord Neuberger’s conclusion was that the Supreme Court should accord Parliament the opportunity of considering whether to amend the criminal law on assisted suicide subject to such protective features as Parliament thinks appropriate. The matter “raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts”. [5]
Lord Sumption’s view in Nicklinson was more trenchant. The question about relaxing the absolute prohibition on assisted suicide is a classic example of the kind of issue which should be decided by Parliament: the decision cannot fail to be strongly influenced by the decision-maker’s personal views. He asserts, “this is entirely appropriate if the decision-makers are those who represent the community at large. It is not appropriate for professional judges. The imposition of their personal opinions on matters of this kind would lack all constitutional legitimacy.”
He stated:
The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic polycentric problem.
The difficulty in Obergefell v. Hodges, to borrow from Lord Sumption, is that the Supreme Court was presented with a polycentric problem but was only able offer a binary solution. Adversarial litigation only allows for winners and losers, not for nuanced accommodations. Accordingly, as Chief Justice Roberts points out, the effect of the decision is to portray everyone who does not share the majority’s “better informed understanding,” (which includes those with sincerely held religious beliefs), as bigoted.
As Chief Justice Roberts notes, legislators in those US States which adopted same-sex marriage by democratic means also included accommodations for religious practice. The majority’s decision in Obergefell v. Hodges did not—and could not—create any such accommodations. And it is ominously silent on the First Amendment guarantee of the freedom to exercise religion. Religions institutions would be hit in their pocket as well: Chief Justice Roberts recorded that the US Solicitor General had acknowledged in evidence that their tax exemptions would be in question if they opposed same-sex marriage.
The US Supreme Court is more politicized that its UK counterpart, largely because its Justices are political appointments.[6] But in Obergefell v. Hodges, the Court lost sight of its judicial function, lurched from the political to the populist “in an opinion lacking even a thin veneer of law,” to quote Justice Scalia. It is a regrettable example of judicial overreach because it focused exclusively on the right of gays and lesbians to marry and, whilst acknowledging the legitimacy of religious views to the contrary, it gave people of faith no reasonable accommodation in return. There is no protection for marriage registrars who cannot in conscience officiate at same-sex weddings.[vii] They will join the ranks of the unemployed. There are no saving provisions for tax exemptions. There are no sensible and nuanced accommodations. To the contrary, the effect of the decision is to stigmatize religious people who espouse a different view as bigoted.
However well-intentioned the five justices who signed up to the majority decision may have been, their collective judicial overreach merely illustrates the injustice that can result when judges attempt social engineering based on their own preferences. The decision served the LGBT+ community well, but at the expense of religious liberty, one of America’s sacred constitutional goods which the US Supreme Court exists to uphold. Had the matter been left to the legislature—as it properly should have—there is every prospect that a fairer solution could have been reached in a non-binary outcome in which gays, lesbians and people of faith could all have been treated with dignity.[8]
[1] He describes the majority opinion as a “judicial Putsch,” and “couched in a style that is as pretentious as its content is egotistic,” which had descended “to the mystical aphorisms of the fortune cookie,” albeit the latter is not in the main text but was relegated to a footnote, along with the remark that he would hide his head in a bag if he had signed up to one of the legal assertions of the majority.
[2] As well as: race, colour, religion, sex, or national origin: Title VII of the Civil Rights Act of 1964.
[3] This piece was written prior to the US Supreme Court decision in Bostock v. Clayton County which, in a majority opinion written by Justice Gorsuch, interpreted the term “sex” expansively so as also to include “sexual orientation.” In his dissenting opinion, Justice Alito rehearsed (albeit at much greater length) much of the judicial overreach argument relied on by Chief Justice Roberts when he dissented in Obergefell. Somewhat curiously in Bostock, Roberts jumped ship and joined with Gorsuch’s majority opinion.
[4] Mark Hill, Ecclesiastical Law (fourth edition, 2018), para 5.29.
[5] Compare this with a decision of the German Federal Constitutional Court in February 2020 which declared the criminalisation of assisted suicide to be unconstitutional. The Court asserted that the right to end life is “not subject to societal norms or ethical mores”. An individual’s decision to end his or her life eludes “any evaluation on the basis of general values, religious commands, societal models for dealing with life and death, or considerations of objective rationality.”
[6] An independent commission is responsible for the selection of Justices for the UK Supreme Court.
[7] Recall the difficulty experienced by Lillian Ladele, a registrar of marriages and a devout Christian, when civil partnerships were introduced into UK law: see Eweida and Others v. United Kingdom.
[8] For a practical approach to maximising the concept of human dignity, see the Punta del Este Declaration, Human Dignity for Everyone Everywhere.