“Religious conviction is the most personal, intimate, and fundamentally existential personal belief. Casey and Lawrence were premised on the right to be left alone: in Casey, the right of the mother to be left alone by the father of the child in her womb,31 and in Lawrence, the right of consenting homosexuals to be left alone from governmental intrusion while they have sex.32 Obergefell went further, mandating that government sanction the private choice of same sex couples to enter into a marital union.33 In other words, Obergefell implicitly establishes that constitutionally protected liberty mandates state action to validate and preserve autonomous choices rooted in individual belief. Unless the Court embraces the indefensible and dehumanizing view that sexual activity, either solely or preeminently, implicates the mysteries of life, it cannot logically harmonize attacks on traditional religious expression with the right to autonomous liberty established by the mystery passage34 and its progeny, including Obergefell.
Michael V. Hernandez, In Defense of Pluralism: Religiously Affiliated Law Schools, Olympianism, and Christophobia, 48 U. Tol. L. Rev. 283, 288-89 (2017).
31 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
32 Lawrence v. Texas, 539 U.S. 558, 578 (2003).
33 Obergefell v. Hodges, 135 S. Ct. 2584, 2607-08 (2015).
34 In his dissent to Lawrence, J. Scalia referred back to a passage of dicta from Casey as “sweet-mystery-of-life”, in which the majority wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”