Brown Baggin' It: Supreme Court Justice Style

When the Gods of The American Olympus Speak: The Uncertainty of Rights

"We hold these truths to be self-evident."

Do we? Do you?

The enterprise of our liberty, our independence, as a people, from Crown and Parliament, depended on the earnestness of those who proclaimed that they held those views. If they were not, as free, moral, agents convinced that they and their fellows were possessed of a body of rights that they could not even agree to surrender (inalienable), then their pretense of offense at the tyranny of the English Crown and Parliament was just that, pretense on pretense. Rather than conclude against evidence that the Declaration of Independence was an insincere statement posturing about aspirations, I take Jefferson and the signers of it at their word.

Who we are, as a People, can be stated in many ways. A law professor with whom I occasionally debated back when newsgroups were a key way to communicate on the Internet often referred to America as the Protestant Empire; that phrase succinctly stated the exclusivity of the Protestant view shared among the principal founders, and among the States, throughout much of our Nation's history. Of course, others use the term "melting pot" and identify the Nation as, essentially, mongrels, the world's "mutts" if you will.

Certainly there will be great disagreement in such categorizations. But the Declaration speaks for me. We are a People convinced that each of us, at the hand of Nature and Nature's God, are endowed with rights that belong to us in time before there is even a political body such as this Nation to get into the business of "granting" such rights. In other words, our right to live, it does not exist because our particular State and the United States have told us we may live. Likewise our rights to liberty and to pursue happiness.

Still, the Declaration, while it gives us an identity as a People, does not state a set of organizational principles by which a common enterprise such as a political community can be stood up and can be maintained.

For those principles, we have looked to Constitutions, first, the Constitutions of the States (as they preceded in time and right the general government) and second, the Constitution of the United States. These documents frame our governments. They confirm powers of the government (or in the case of the federal government, they confer those powers on the general government). They acknowledge the existence of, and inviolability of, the rights with which the Declaration says we are each endowed.

Throughout the entire course of our constitutional history, a struggle has existed over the question of how to govern the whole body of us. Lincoln spoke to this question in his First Inaugural Address. Remember, to render this address on the assumption of his duties, Lincoln had first to sneak into Washington, DC, coming from Illinois, by rail, through the border State of Maryland, which never seceded but which had preferred his opponent, John Breckenridge, a Southern Democrat, in the general election. So, in his inaugural address, with threats and moves toward secession spoken openly, he made his appeal for Union.

In that appeal, he explained how the conflicting views created issues of how the Nation could be governed. In his view, secession was the minority opinion. And, as he viewed it so, he explained that it was not, by any sense of political power or duty, entitled to a permanent circumstance of governing over the majority:

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Ultimately, what we have is not a finely tuned machine, with exceeding close, "German engineering" tolerances. Instead, we have republican (little "R") government by which, in fact, our law and policy is made by representatives of the people, not the people themselves. Moreover, that republican or representative government does govern by principles of majority rule. With respect to the choices to made in laws to enact, laws to repeal, and the like, the essential governing principles are two:

First, the majority is free to make laws, or to repeal laws, touching upon the host of human experience and interactions, so far as, and to the extent that, the majority chooses to do so.

They can adopt a law requiring that leaves be bagged and placed at the curb. They can pass a law requiring that cars undergo an annual safety inspection. The only requirement preceding a legitimate exercise of this general right of legislative majorities is that there be an underlying rationale for their law that survives a minimal kind of scrutiny often called the rational basis test. So, for the leaf bagging requirement, a county commission might pass just such an ordinance after hearing testimony from the rainwater runoff commission that leaves piled in street-side gutters result in clogged rainwater drains.

Second, the majority is barred from making laws in selected categories.

The majority cannot make laws that target certain kinds of minority groups for disfavored treatment (so, for example, they majority cannot require that all Asians register with the police department, or that all Norwegians register with the Farm Bureau). Such laws violate the principle of equal protection of the law. The majority could, for example, pass a law requiring EVERYONE to undertake some ministerial act, for example, attend school. In fact, such laws are widespread, rampant, familiar.

The majority is also barred from making laws that burden the exercise of certain essential, political and civil rights, rights that we often associate with the Bill of Rights, such as the right to freedom of speech, the right to free exercise of religion, the right to keep and bear arms. It doesn't matter that the Congress or your State assembly pass a law that restricts every one's right to gun ownership -- as opposed to a law prohibiting only Caucasian females from owning -- it is the underlying, affected right that is of particular concern and that is particularly prized and protected.

Given that background, and as we are, or may be, on the cusp of a stunning decision of the Supreme Court on a question of law that has always been, until in recent time, readily recognized as belonging to the sphere of States' powers rather than the federal government's powers, I think it of great importance to see how a nation is being held hostage to the opinion of, essentially, a single man.

The American Olympus

Let's start with this atmospheric:

Here are the remains of the Parthenon, the Temple of Athena, the Greek Goddess of Wisdom. By legend she sprang full grown from the head of Zeus. Nearly two and a half millenia later, the Athenian devotion to her wisdom is evident in the structure.

Yes, damaged. Crumbling. But who isn't after a couple millenia. Now, compare that remarkable temple with this one, the United States Supreme Court, which was constructed in the manner it was, for the purpose of creating a sense of it as a judicial Olympus:

Comparing the two leaves you the impression that the only real difference is that the Supreme Court required more space for staff than did Athena.

And, it isn't that the building resembles a Greek temple, accidentally. Cass Gilbert, architect of the structure, "literally conceived of [it] as the temple of justice...." "Finished and occupied in 1935, the Supreme Court is meant to resemble a great marble temple."

Literally, the face of the Court to the Nation is that the Court is our American Olympus. With the passage of time, and the accretions of power within our constitutional framework of government, the Court's decisions are often difficult to perceive differently than the rolling of thunder and bolts of lighting from legendary Olympus.

If you haven't listened to the oral argument recently had before the Supreme Court on the cases involving the claimed constitutional right to "marriage equality," the legal principles and language are not so arcane, so full of legal jargon, as to be beyond comprehension. You could, if you wished, listen to those arguments, here (part one) and here (part two). It's a good bit more work to wade through the briefs and the many additional filings by interest groups supporting and opposing the claimed constitutional right to marriage equality. But were you to do so, you would immediate recognize that there is one "pretty girl" in the "gym" of the Supreme Court's argument, only one justice for whose vote every legal "suitor" pines and yearns: Justice Anthony Kennedy.

Kennedy, just like moderates preceding him, is often targeted by the authors of briefs and the presenters of arguments. Not targeted in a bad sense, but targeted in the sense of being the one to be convinced, to be wooed in words. And the media reports recognize that this case likely depends on Kennedy's vote. Here are some examples of such media reports:

The decision is likely to come down to the court's key swing voter, Justice Anthony Kennedy, or Justice John Roberts, who once sided with the liberals in the case that upheld Obamacare.

He said the more conservative justices - Antonin Scalia, Clarence Thomas and Samuel Alito - are likely to rule against gay marriage. And the more liberal justices - Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor - are expected to support it. Feldman said Justice Anthony Kennedy and potentially Chief Justice John Roberts could be the deciding votes.

The four liberal justices are expected to support same-sex marriage, and conservative Justice Anthony Kennedy, the expected swing vote, has a history of backing gay rights. In three key decisions since 1996, Kennedy has broadened the court's view of equality for gays. The most recent was a 2013 case in which the court struck down a federal law denying benefits to married same-sex couples.

All reports from the argument support the likely scenario that Justices Breyer, Ginsburg, Sotomayor and Kagan will vote to overturn the lower court decisions in the cases at the Court on the ground that the Constitution guarantees the right to marriage equality, and that Justices Roberts, Scalia, Thomas, and Alito will vote to affirm the decisions now pending before the Court. (Of course, we are supposed to reason that even though Justices Ginsburg and Kagan have officiated at same-sex marriages, their decisions on the legal question will proceed from constitutional grounds rather than personally biases.)

That leaves for prognosticators the all important question: how will Kennedy vote? 

Will Kennedy join the progressives on the Court and stunningly overturn the understood two hundred years plus interpretation of the Constitution and one hundred forty years reading of the Fourteenth Amendment, finding a right to marriage equality that guarantees that members of the same sex have same right to marriage as was previously recognized only for opposite sex couples? Or, will Kennedy join with Roberts, Scalia, Thomas and Alito, and hew the traditional lines of the Constitution?

No one, except the Justices and their staff members involved, has any idea for sure now. But shortly we will all know. And then, no matter how the case turns the howling will ensue. If Kennedy rejects marriage equality in this go-round, even if he leaves open the pathway toward its eventual recognition, the supporters of marriage equality will undoubtedly decry the injustice that they perceive in such a construction of the Constitution. If Kennedy joins the progressive justices on the Court and finds a constitutional right to same sex marriage, then the hue and cry from supporters of traditional marriage will, likewise, erupt.

So now, I am again thinking of the President I hate to love, the President I love to hate, Abraham Lincoln. And I'm thinking about the Nation that he "inherited" as President. Then, we were a nation fracturing over slavery, and reeling from a Supreme Court decision that rejected the power of Congress to restrict slavery in federal territories, a decision that denied the constitutional person hood of Africans. Then, his First Inaugural Address, he spoke to near half a Nation that hung precipitously on the cusp of secession, and to over half a Nation that had seemed content to leave slavery where it found it, maintain Free Soil principles where they established them, and work toward political solutions when possible. His address served as his appeal to heart and mind against the propriety of secession, and thus against the principle, as he would see it, of minority rule.

Today, his words would be directed to those who advocate marriage equality. While same-sex marriage has become legal in the majority of our States, the bulk of those changes were by reason of federal court decisions declaring State laws or State constitutional provisions restricting marriage to opposite sex couples to be unconstitutional as violations of the Fourteenth Amendment. In the absence of those judicial rulings, the vast majority of States prohibited anything other than opposite sex marriage. Lincoln, then and now, would urge that the better, more secure guarantee of the right for which they are contending through the Courts.

Remember that the Nation learned this lesson through a Civil War. An ill construction given to the Constitution by the Supreme Court, the election of a Radical Republican, and the feared loss of sovereignty in southern States, together with the moral question of slavery, precipitated that war. And that war created the conditions by which three amendments -- prohibiting slavery, guaranteeing citizenship to the newly freed slaves, and providing a right to vote -- could be added to the Constitution. And while the work of perfecting those repairs is not done, it has not been left mostly undone.

And that's why I keep explaining in this blog, and elsewhere. I know many stridently oppose redefining marriage to include same sex marriage. I know some fervently yearn for recognition of marriage equality under the Constitution. But neither group can rest securely in the outcome for which they hope when the outcome is granted by the oligarchs of the Supreme Court. The securest means of guaranteeing a right or preventing a wrong, in our constitutional society, is to AMEND the Constitution. Nothing else is a substitute for doing so. Otherwise, we will continue to wake up in Kennedy's America, or another Justice's America, and not our own.

Marriage Equality, the Fourteenth Amendment, and Loss of Religious Liberties: Not Everything Is a Function of the Law of Unintended Consequences

On the Law of Unintended Consequences

In Jurassic Park, Ian Malcolm introduced many of us to the Chaos Theory in mathematics. Chaos Theory, he explained, seeks to explain the behavior of highly complex systems, particularly the impact of small changes on such systems. In Malcolm’s wake, some folks wonder whether a butterfly flapping its wings in New York's Central Park might cause rain in China. Even given Chaos Theory, I suspect anyone that accuses a butterfly in New York City of intending to cause rain in China is bound to be looked on as "special."

Chaos Theory might help us understand another phenomenon, often identified as the Law of Unintended Consequences. How often have we been told that some ill outcome was not intended to be provoked by some action? There are too many instances of folks describing something as being the result of the law of unintended consequences to try to detail them all. Still, it is a source of disturbing amusement to consider examples of the Law of Unintended Consequences, so let me offer a couple examples.

Yes, The Law of Unintended Consequences Can Kill

Under Chairman Mao, Communist China instituted an agricultural campaign to improve production. They called it the "Four Pests" campaign. The four pests were sparrows, rats, flies and mosquitoes. Yes, sparrows. Sparrows enjoy grains, and fed on growing crops. So the Communists included sparrows in its extermination program.

Of course, any good campaign by the People must have good posters. Here's a poster showing siblings working hard to protect the Proletariat from the sparrows. (Notice the young lady's stringer of dead sparrows!)

The Four Pests Campaign aimed to insure great crops for "Ten Thousand Generations." Of course, doing so would depend on involving children in more than just the sling shooting of sparrows. So, here is a lovely poster from the early 1960's showing

Chinese children attacking the four pests; you can see the four pests depicted in the center rhombus.

Apparently, the Four Pests Campaign succeeded, after a certain manner. The sparrow population was substantially culled. In fact, so many sparrows were killed that its decline impacted the Chinese agricultural ecology. As it turns out, sparrows are a natural predator of locusts. Having killed of so many sparrows, the population of locusts exploded. The locusts ate freely and the Chinese agricultural economy suffered greatly.

That is a great example of the law of unintended consequences.

Here, the Chinese adopted the Four Pests Campaign as an intentional policy. Eliminate pests to increase crops and health. In the process, eliminate the predator in a natural prey-predator relationship. With no predator, the population of the prey explodes. Depending on the source consulted, some 20 million Chinese died during the Great Chinese Famine. It isn't known the precise number whose starvation resulted from killing the sparrow population and freeing the locust from its natural relationship in a predator-prey relationship.

Consider another example.

Under colonial rule, the British Government sought to ameliorate the problems of a heavy population of the highly poisonous cobra snake in India. The British Government attacked the problem with bureaucratic efficiency. It would pay a bounty for each dead cobra. The problem of the cobra population should have abated.

Enterprising Indians, however, realized that the British Colonial Government was offering more for a dead snake then the cost of breeding and rearing snake.  As a consequence, Indians began breeding cobras. Eventually, program expenses grew too great and the British Government canceled it. Indians, unable to sell the snakes to the government quickly resolved their own, new cobra problems. They release the snakes they were breeding into the wild. Ultimately, the snake control program increased the native cobra populations.

Now, suppose you worked in the Chinese government. Suppose you knew that the sparrow was a key predator for locusts and other crop pests. Suppose studies demonstrated that the damage and loss caused by the predatory sparrow would be infinitesimally smaller than the harm caused by locusts and other crop pests no longer suppressed by the sparrow. Suppose, finally, that you imposed the Four Pests Campaign anyway.

Could you really call the deaths and privations that followed crop failures due to locust swarms and pest infestations an "unintended consequence?" Of course you could, because you are the government, after all, and you are seldom held accountable for the consequences of government programs.

Frederick Bastiat, the French economist, didn't refer to the law of unintended consequences by that moniker. In his last monograph, What is Seen and What is Not Seen, he spoke of the immediate effects of our actions, and of the effects that come later and that should, to prevent harms, be foreseen:

In the economic sphere an act, a habit, an institution, a law produces not only one effect, but a series of effects. Of these effects, the first alone is immediate; it appears simultaneously with its cause; it is seen. The other effects emerge only subsequently; they are not seen; we are fortunate if we foresee them. There is only one difference between a bad economist and a good one: the bad economist confines himself to the visible effect; the good economist takes into account both the effect that can be seen and those effects that must be foreseen.

Marriage Equality: Fourteenth Amendment Inevitability?

On Tuesday, April 28, the Supreme Court heard arguments in a set of consolidated cases arising out of Ohio, Michigan, Kentucky and Tennessee. In the cases, a federal appeals court had upheld the constitutionality of state laws limiting marriage to opposite sex couples. The appeals court rejected arguments by Marriage Equality advocates that the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment required States to license couples of the same sex to be married.

Other federal appeals courts to consider these issues had held that the Fourteenth Amendment required States to allow same sex couples equal access to marriage. Consequently, the decisions in the Ohio and related cases produced a conflict among the federal appeals courts. One of the Supreme Court's primary responsibilities is to insure uniformity across the Nation in the application of federal law, including the federal constitution. Consequently, the Supreme Court faced just such a lack of uniformity and just such need to address an inter circuit conflict.

The Supreme Court's decision, expected by the end of June, will either affirm the Sixth Circuit's decision or overturn it. If the Court affirms the Sixth Circuit, its decision would have the effect of restoring to other States the ability to enforce laws limiting marriage to opposite sex couples. If, on the other hand, the Court reverses the Sixth Circuit, the likely outcome will be the sweeping completion by judicial fiat of the alteration of the definition of legal marriage in the States of the Union.

Will Harms to Religious Organizations Result from Recognizing a Fourteenth Amendment Right to Marriage Equality

Now, as to the law of unintended consequences, an exchange between the Justices and Solicitor General Donald Verrilli has drawn some modest, post-argument attention.

The Solicitor General speaks for the United States in cases before the Court. Here, the Solicitor General filed a brief as "friend of the Court" and argued orally in support of the Petitioners. To clarify, the Solicitor General, representing us, argued that the Constitution requires recognition of the right to same sex marriage under the Fourteenth Amendment.

Remember, as we are told, legalizing same sex marriage has to do with recognizing the equal human dignity of gays and lesbians, and with recognizing that their intimate choices in relation to love, sex, and, yes, marriage, are accorded treatment under current law that leaves them as second-class citizens. Given the humanitarian appeal of such arguments, we might tempted to conclude that there are no dangerous unintended consequences that would result from ensconcing in the Constitution the recognition of a fundamental right to same sex marriage. And it is on that point that the Solicitor General's participation is concerning.

Here is a transcript excerpt from the argument:

CHIEF JUSTICE ROBERTS:  Counsel, I'd like to follow up in a line of questioning that Justice Scalia started. We have a concession from your friend that clergy will not be required to perform same­ sex marriage, but there are going to be harder questions.
Would a religious school that has married housing be required to afford such housing to same ­sex couples?
GENERAL VERRILLI:  I guess what I'd ­­ I'd like to make three points about that, if I could, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS:  Well, the first part ­­
GENERAL VERRILLI:  And I will ­­ and I'll go right at the question you asked. The first one is, of course, this Court's ruling addresses what the States must do under the Fourteenth Amendment.
And the ­­ and the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well ­­ you know, different states could strike different balances.
CHIEF JUSTICE ROBERTS:  What about Federal ­­ it's a Federal question if we make it a matter of constitutional law.
GENERAL VERRILLI:  But the question of what ­­ how States use their enforcement power is up to the States.
CHIEF JUSTICE ROBERTS:  Well, you have enforcement power, too.
GENERAL VERRILLI:  Right.  And ­­ and ­­ well, that's certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out.
And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same­ sex marriage, where there are and, in fact, they have arisen many times.  There ­­ there are these commitment ceremonies.
For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage.  That arose out of a commitment ceremony, and the ­­ and these, you know, commitment ceremonies are going to need florists and caterers.
JUSTICE ALITO:  Well, in the Bob Jones case, the Court held that a college was not entitled to tax ­exempt status if it opposed interracial marriage or  interracial dating.  So would the same apply to a university or a college if it opposed same­ sex marriage?
GENERAL VERRILLI:  You know, I ­­ I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I ­­ I don't deny that.  I don't deny that, Justice Alito.  It is ­­ it is going to be an issue.

So what was that all about?

Here, in a nutshell, is what that was all about. If the Constitution guarantees the right to marriage equality, it does so because it prohibits discrimination on the basis of sexual orientation. (The possible exception would be were such discrimination was required to meet a compelling government interest and was served by the most narrowly drawn regulation possible.) In turn, if the Constitution does this, if it says, not in so many words, that legal classifications based on sexual orientation are invidiously discriminatory, then marriage equality will not be mandate for change to be found in the Constitution.

In fact, based on a prior decision of the Supreme Court, it is entirely possible, if not likely, that the right of religious organizations to define their doctrines, to select their ministers and teachers, to maintain their identity, would be lost.

How is that likely to be the case?

As the excerpt above shows, the justices raised as a concern that a decision finding that the Fourteenth Amendment mandates marriage equality could result in revocation of tax exempt statuses of religious schools. The Solicitor General did nothing to assuage the concerns raised by the justices.

Remember, Justice Alito referred to "the Bob Jones case."

Bob Jones University: Losing Tax Exempt Status Due to Important Public Policies on Discrimination

In Bob Jones University v. United States, the Supreme Court held that the IRS had not violated the free exercise of religion rights of the University by revoking its tax exempt status. The IRS revoked BJU's tax exemption because it maintained a scheme of racially discriminatory admissions policies. For years, BJU denied admissions applications from blacks; later, BJU admitted blacks, but maintained a ban on interracial dating.

(As bizarre as it may be to say it, BJU apparently believed that God prohibits interracial marriage. As an aside, despite searching, I've been unable to find BJU's explanation of how its racial discrimination avoided what I like to refer to the Sin of Aaron and Miriam. Remember God inflicted leprosy on Moses' siblings after they made fun of Moses' dark skinned wife.)

BJU, having lost its tax exemption, sued the IRS to recover its exemption. The case came to the Supreme Court, which granted review. In its Order granting review, the Court stated that it would review this question:

Can the government prohibit race discrimination at the expense of the First Amendment's Free Exercise Clauses?

The Court concluded that BJU was ineligible for tax exempt status because, given its racially discriminatory policy, it did not qualify as a charitable organization. BJU never regained its tax exempt status, although a number of affiliated organizations are, themselves, set up as tax exempt organizations. Nearly the entire opinion for the Court focuses on interpretation of tax laws.

Despite the question on which the Court granted review, the Court's opinion barely glances at the issue of religious freedom as it speeds past it. The glance was, apparently, just enough to justify rejecting the argument for religious liberty. First, the Court concluded that the government had a compelling, fundamental, overriding interest in eliminating racial discrimination in education. Second, the Court concluded that the interests in religious freedom asserted by BJU were not able to be accommodated because no less restrictive means to secure the government interest was available:

The governmental interest at stake here is compelling. [T]he Government has a fundamental, overriding interest in eradicating racial discrimination in education -- discrimination that prevailed, with official approval, for the first 165 years of this Nation's constitutional history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs. The interests asserted by petitioners cannot be accommodated with that compelling governmental interest, [] and no 'less restrictive means,' [], are available to achieve the governmental interest.

Now, you can see Justice Alito's concern and the reason for his questions. By deciding the question presented by the petitioners, in the way requested by the petitioners, it is at least possible that the Court would be setting the stage for additional, "unintended" consequences. Among the consequences is the threat to the religious liberties of religious organizations, depending on their doctrines related to marriage, their policies on employment, and on other issues, such as admissions.

Petitioners challenged Ohio's statutory marriage scheme as a violation of the federal Constitution. To obtain relief from a federal court, they crafted a legal argument that depended on federal legal authority. That legal authority, as they posited it, is the Fourteenth Amendment, particularly the Due Process and Equal Protection Clauses of it. Had the federal courts agreed with Petitioners, concluding that Ohio's definition of marriage -- limiting legal marriage to opposite sex couples -- violates the Fourteenth Amendment, then Ohio's law on marriage would be unconstitutional.

Past is Prologue: Employment and Other Disputes Accusing Religious Organizations of Discrimination in Matters Sexual are Already Ongoing

So now we are left to ponder, as we await the likely June decision of the Supreme Court, what will be the consequences of recognizing a constitutional right to same sex marriage? Will the right to free exercise of religion -- a right expressly protected under the First Amendment from diminution by government -- get the same slipshod and shortchanging treatment in a future case that it received from the Court in Bob Jones University?

Now, lest you believe others who assert that it is panic peddling to warn that Catholic schools, Orthodox Jewish yeshivas, and B'ahai worship centers could lose their tax exempt status as a consequence of a Fourteenth Amendment right to marriage equality, you should know that there is a rich history of legal disputes over religious identity and moral conduct requirements in the arrangements of religiously affiliated schools.

Just last year, for example, a teacher employed with a Montana Catholic school sued the Butte Diocese (under law and Catholic doctrine, Catholic schools are administrative units of the Diocese, and the Diocese answers for the acts of the school). Shaela Evenson taught literature and physical education, and her employment was under a contract with the Diocese. When an anonymous tip advised the Diocese that an unmarried teacher in one of the Catholic schools of the Diocese had become pregnant, an investigation followed. The Diocese offered Evenson the opportunity to resign rather than to suffer termination due to her breach of contract.

Evenson declined and the Diocese fired her. She filed suit. Evenson's complaint states that she is not a "ministerial" (religious) employee, not even Catholic, and not involved in the teaching of religious classes. Her termination, she alleged violated the employment contract, federal law and state law.

Evenson's suit follows on the heels of another, brought by a teacher in a Catholic High School near Detroit. There, Barbara Webb, who lived in a same sex relationship, became pregnant through artificial insemination. The school investigated, and her termination also quickly followed. In Webb's case, the school offered to continue her health care coverage (presumably for the sake of needed health care during the pregnancy). Webb declined.

These two examples are just culled from a quick search on an internet search engine.

The idea that religious grounds might justify policies treating people disparately based on their religious identities, or based on their comportment with religious teachings seems to aggravate various issue groups. The American Civil Liberties Union, for example, warns of these dangers on its Religious Discrimination web page:

Religiously affiliated schools firing women because they became pregnant while not married;

Business owners refusing to provide insurance coverage for contraception for their employees;

Graduate students, training to be social workers, refusing to counsel gay people;

Pharmacies turning away women seeking to fill birth control prescriptions;

Bridal salons, photo studios, and reception halls closing their doors to same-sex couples planning their weddings.

Similar warnings can be found on the pages of the Secular Coalition of America, Americans United for Separation of Church and State, and People for the American Way.

Obviously, others have drawn the likely connection between a newly recognized constitutional right to marriage equality and practices previously recognized as protected due to their religious dimensions. Bob Jones University tells us that the IRS -- already shown to be a potent political tool when the administration in power seeks to use it in that way -- can justifiably deny tax exempt status where a sufficiently compelling government interest exists as part and parcel of an important public policy.

So we have been warned. We have been warned that schools, hospitals and convalescent facilities, elder care homes, and a variety of other religiously affiliated providers of services in the United States precariously possess their tax exempt status under federal law.

The thing is, I am fairly certain that, if such consequences follow, it won't be because they were unwanted, unforeseen, or, for that matter, unintended.