It didn’t take long after the Supreme Court’s June 26 decision to legalize same-sex marriage that resistance by county clerks and other government officials began to make headlines. In Rowan County, Kentucky, a YouTube video of two men being denied a marriage license by clerk Kim Davis, a Christian, has been viewed more than 1.7 million times in just more than the span of a week. Kentucky’s governor, Steve Beshear, insisted clerks must carry out their duties despite personal beliefs.
Erin Mersino, senior trial counsel at the Thomas More Law Center in Ann Arbor, Michigan, said that while she isn’t aware of any specifically Catholic cases related to this marriage decision, it is just a matter of time before one will come across her desk.
Mersino explained that the Supreme Court has created a conflict between the inalienable right to religious freedom granted by the Bill of Rights and a new “right” that will require states to validate and give dignity to homosexual commitments.
“I believe that we have the freedom to live out our faith without punishment or retaliation from the government,” she stated. “In this time, that principle of our government is being challenged,” she said. “Some people will be asked to capitulate to unjust demands of their employer or the government, and these individuals must prayerfully consider their actions.”
Bishop Michael Sheridan of the Diocese of Colorado Springs, Colorado, wasn’t too surprised by the court’s decision.
“Once again, the Supreme Court has gotten it wrong,” he said. “The jurisprudence on all of this is absurd. But it is what it is.”
In 2003, the Congregation for the Doctrine of the Faith spoke specifically on how Catholics are to respond. In its document, “Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons,” it states:
“In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.”
For the county clerk, wedding photographer or florist who now have to deal with same-sex marriage, their formal cooperation with evil in these matters is pretty far removed, explained Bishop Sheridan.
“In one sense, the Catholic county clerk is probably signing off on invalid marriages all the time with the divorced Catholic man who is coming in and applying for his third civil marriage, or the cohabiting couple. The clerk is just doing his or her job and not ‘championing’ same-sex marriage.”
Lessons from Indiana
As the dust settles on this landmark decision, Mersino is hopeful that the 1993 Religious Freedom Restoration Act (RFRA), which was nearly unanimously passed by Congress and signed into law by President Bill Clinton, will do its job.
“RFRA protects religious individuals from discrimination,” Mersino said. “The law reflects the long-held democratic truth that the government is not to decide what is and what is not acceptable when it comes to religious beliefs.” Since RFRA’s passage more than two decades ago, 31 states have enacted legislation that mirrors the federal law.
In April, Indiana Governor Mike Pence signed into law Indiana Senate Bill 101 entitled the Religious Freedom Restoration Act, which allows individuals and companies to assert that their exercise of religion has been, or is likely to be, substantially burdened as a defense in legal proceedings.
Peter Breen, an attorney with the Thomas More Society located in Chicago, was one of the lead attorneys who testified before the Indiana House and Senate in favor of this bill, which passed with broad support.
He said after the bill passed, the propaganda launched by those advocating same-sex marriage was unlike anything he had seen. “The other side [gay-rights advocates] had the nation believing that they would be discriminated in all manners of life,” he told Our Sunday Visitor.
“At one point, they had us believing that a worker at McDonalds would be able to not serve a hamburger to a homosexual because of this new legislation,” Breen said. “We all know that is absurd.”
To prevent this type of misinterpretation, of who or what will be protected from federal, state or local government infringing upon one’s sincerely held religious beliefs, Breen advocates for people of faith to seek very specific, “narrowly tailored” protections as it relates to their objections participating in and recognizing same-sex marriages.
Now that same-sex marriage is the law of the land, both Breen and Mersino expect to see all kinds of religious-liberty challenges at the state and local level. Before the Supreme Court’s June 26 decision, gay marriage was illegal in 13 states.
Mersino explained that those states will now have to define what religious freedom means as it specifically relates to issues of homosexuality. She said another battle that will play out at the state and local levels is whether sexuality is a protected class and should be publicly accommodated.
Mersino said that the debate on whether people with same-sex attraction should receive public accommodation has already come before the courts. In 2013, the New Mexico State Supreme Court ruled that a Christian wedding photographer, Elaine Huguenin, discriminated against a lesbian couple when she refused to take photos at the couple’s commitment ceremony.
New Mexico Supreme Court Justice Richard C. Bosson concurred with the majority opinion, but with reservations when he wrote:
“The Huguenins are not trying to prohibit anyone from marrying. They only want to be left alone to conduct their photography business in a manner consistent with their moral convictions.” Instead, they “are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it the result is sobering.”
Breen said we can now expect many more of these head-on collisions between religious freedom and the law.
“You will have states where people can openly practice their faith in their personal lives and in their businesses, and we may see states where they will not be able to practice and live their faith in their business and personal lives.”
Bishop Sheridan said that the best response as Catholics to refute the validity of same-sex marriage is to model authentic marriage.
“We are not good at changing laws, but we can change hearts,” he stated.
He cited the change of thinking on abortion from when it first became law in 1973 to where it is today.
“We are in a war for the soul of Western civilization,” the bishop said.
“We need to be about the business of living authentic marriage day in and day out; that is where the opinion on this will change.”
Eddie O’Neill writes from Missouri.