Ruling puts another dent in religious freedom

How much protection does the Supreme Court’s decision declaring a previously unrecognized constitutional right to same-sex marriage offer to individuals and groups whose religious beliefs rule it out?

The realistic answer is: somewhere between very little and none.

The same-sex marriage case, Obergefell v. Hodges, has been likened to Roe v. Wade, the Supreme Court’s 1973 decision legalizing abortion, and likenesses do exist. In both instances, the court imposed a controversial social policy on the nation, basing its action on a novel reading of the Constitution.

But there also are significant differences between the situation after Roe v. Wade and the situation after Obergefell v. Hodges.

Following Roe, abortion supporters largely sought to silence opponents by repeatedly insisting that the Supreme Court had settled the issue.

After Obergefell, same-sex marriage backers will try to silence opponents by laws and regulations imposing heavy penalties on those who refuse to go along.

The majority opinion in the 5-4 decision handed down June 26 was written by Justice Anthony Kennedy, author of earlier decisions on behalf of gay rights causes. Joining him were the four justices of the court’s liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Writing strongly worded dissents were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Much of the dissenting justices’ critique focused on the argument that the majority was overreaching itself and imposing the views of five lawyers on the country instead of leaving questions about something as fundamental as the nature of marriage to legislatures and, ultimately, the people to decide. Chief Justice Roberts called the decision “an act of will, not legal judgment.”

But the majority’s treatment of religion and religious liberty also came in for some sharp criticism.

Religious protection

Kennedy’s opinion — which the sharp-penned Scalia called “mystical aphorisms of the fortune cookie” — runs 28 pages, with another six pages of notes. In this outpouring of rhetoric, exactly one paragraph speaks of the rights of “religions and those who adhere to religious doctrines.”

Much of the dissenting justices’ critique focused on the argument that the majority was over- reaching itself and imposing the views of five lawyers on the country instead of leaving questions about ... the nature of marriage to legislatures and, ultimately, the people to decide.

Of them, the opinion says that, just like those who support same-sex marriage, these churches and believers “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

There are several problems with this. For one thing, it ignores the plight of providers of wedding-related services who face penalties under anti-discrimination laws for refusing on religious grounds to service same-sex marriages.

Florists, wedding photographers and bakers in several places already have run into problems. In the most notorious case, an evangelical husband and wife who operated a bakery in Oregon were fined $135,000 for declining to provide a wedding cake for a lesbian couple. The bakery has since gone out of business.

As for churches and church institutions, Kennedy would let the churches “advocate” but offers no guarantees to the institutions. In the District of Columbia and several states, Catholic Charities already has been forced out of adoption and foster care because it could not conscientiously comply with laws requiring placement of children with same-sex couples.

And schools? During oral arguments, Justice Samuel Alito asked U.S. Solicitor General Donald Verrilli, arguing for the Obama administration on behalf of same-sex marriage, whether church-related schools faced the loss of their tax-exempt status if they refused to go along. Verrilli’s answer:

“It’s certainly going to be an issue. ... It is — it is going to be an issue.”

It remains an issue in the wake of Obergefell.

Challenges ahead

Thomas, joined by Scalia in his dissent, dismissed the protection extended to religion by Kennedy as inconsequential and said that in reality, it “threatens ... religious liberty.” Thomas wrote:

“Religious liberty is about more than just the protection for ‘religious organizations and persons ... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ Religious liberty is about freedom of action in matters of religion generally.”

One obvious conclusion now is that churches and religious institutions that do not accept same-sex marriage have an urgent need for new legal protections in the wake of Obergefell. But obtaining those may not be so easy. There has been talk of amending the Constitution, but that seems unlikely to happen, and new legislation at either the federal or state levels will face a fight.

The issue now seems likely to play a role in the 2016 election — but what role is by no means clear. Democrats generally hailed the Obergefell decision. Contenders for the Republican presidential nomination were generally critical, but to varying degrees.

Advocates of same-sex marriage make it clear that they will tolerate no watering-down of the new doctrine enunciated by the Supreme Court and will fight for its entrenchment and expansion.

In an op-ed article published in The Washington Post the morning the court announced its decision in Obergefell, the assistant legal director of the American Civil Liberties Union, Louise Melling, sounded something like a battle cry.

Writing that the ACLU had withdrawn its support for the principal existing federal religious liberty law, the Religious Freedom Restoration Act of 1993, Melling called for congressional action amending RFRA to ensure for further protections for the rights of gays.


In the long run, the Supreme Court’s decision on same-sex marriage marks a major victory for the ideology driving not only this particular campaign but the sexual revolution as a whole.

The revolution’s objective remains what it has always been: no less than a revolution in values and practices pertaining to human sexuality that will either sweep marriage and religion aside or else sweep them along with it.

The most stark account of what this might mean for religious individuals and groups was provided by Alito in his dissent. In the wake of Obergefell, he wrote:

“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools. ... By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.”

Russell Shaw is an OSV contributing editor.

Obergefell V. Hodges
By a 5-4 majority, the Supreme Court held that states must allow same-sex couples to marry and that they must recognize same-sex marriages performed in other states.

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