Under the Fig Tree

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The Supreme Court’s decision on same-sex marriage moves us to extend congratulations to those millions, including many of our friends, who were invested in this struggle. Had they kept faith with the legislative process they no doubt would have reached a more unifying denouement. But we would never suggest that any Americans lurk in frustration waiting for rights they perceive to be theirs or shrink from asserting their rights in a United States courtroom. They have won a famous victory, and generations will marvel at what they did.

Yet our own sentiments are with the losers in this case — Ohio, Michigan,Tennessee, and Kentucky. We keep thinking of President Washington’s letter welcoming the Jews to America. He wrote in August 1790 to the Touro synagogue at Newport, Rhode Island. America, he said, had given to mankind “an enlarged and liberal policy” in which “all possess alike liberty of conscience and immunities of citizenship.” Washington seemed to see the 14th Amendment in pre-vision, three generations before it was written. He went on to promise that everyone “shall sit in safety under his own vine and fig tree and there shall be none to make him afraid.”

Today there is fear under the fig trees. Never has a decision of the Supreme Court so thrown Washington’s promise into doubt. The Court knows it. The Chief Justice warned of it in his dissent. The issuer of the majority opinion, Justice Kennedy, gave it but a paragraph, in which he sought to emphasize that under the First Amendment “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.” He failed even to mention the First’s guarantee of the “free exercise” of religion. Maybe this part of Justice Kennedy’s opinion was written by his law clerk, Marie Antoinette.

The fact is that the campaign for same-sex marriage has been fought at the expense of religious orthodoxy, a point that has vexed these columns with growing frequency. One day we read of a Christian wedding cake baker who has been brought up on charges, the next day of a little wedding chapel run by married clergy who may have to close, the next of a religious family fighting for the right to limit the weddings for which they rent their home to traditional nuptials. A Catholic adoption agency has been forced to close. The list of such collisions of religious people and the government seems to grow by the week.

We don’t gainsay the bigotry and, all too often, violence that have been visited against lesbian, gay, bisexual, and transgender persons in America. It has been a long and bitter travail, and the campaign against such injustice has been inspiring. Some proponents of gay marriage — Andrew Sullivan, most famously — have courageously warned against letting it beget intolerance within the gay community toward others. In any event, the Supreme Court gave short shrift to religious accommodation as it overruled the people of Kentucky, Michigan, Tennessee, and Ohio.

Now the campaign for religious accommodation and free exercise will accelerate, even as same-sex couples exercise the rights they have just been vouchsafed. Our country is fortunate to have a number of law firms that specialize in religious liberty. It is important that the struggle for religious accommodation not be confused with, say, the resistance that met Brown v. Board of Education. None of the orthodox religions seeks to impose their doctrine on others. This point has been eloquently marked by the Jewish leadership, particularly the Orthodox Union and the Agudath Israel of America (the Council of Torah Sages), and the Christian authorities.

If there is fear among the vines and fig trees, let assuaging it now be made a priority. For if George Washington’s promise to the Jews meant anything, it meant that in America, the fact that you fear God will be no cause to fear your government. He warned in his farewell address of the folly of supposing that national morality can be maintained in the exclusion of religious principles. He ended his letter to the Jews with a prayer that seems most apt as the new day begins: “May the father of all mercies scatter light, and not darkness, upon our paths, and make us all in our several vocations useful here, and in His own due time and way everlastingly happy.”


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