Last year the Supreme Court handed down one of its landmark cases in Obergefell v. Hodges. Based on the opinion of five justices, same-sex marriage is now the law of the land. While legalization is not a direct threat to people of faith, it opens the door for serious problems.
Regardless of whether one agrees or disagrees with the decision, it has implications that extend far beyond simply giving gay people the right to marry. While the sky has not yet fallen, even nine months later, there are parts of the opinion that should trouble all Americans who believe in the freedom of conscience. This first of a three-part series will look at the way same-sex marriage legalization impacts churches and individuals.
Protections for Churches and Individuals
First the good news. Pastors and individuals are the most secure after the decision. Churches also enjoy significant protection from being forced to violate their beliefs. The Supreme Court, for all its divisions, recognizes that religious freedom deserves protection, even if some of the justices have a narrow view of what this means.
A more recent Supreme Court case about religious liberty, Zubik v. Burwell, offers a good example. The Zubik case is a complex compilation of seven cases, the most famous being that of a Catholic order of nuns known as the Little Sisters who are suing the government because it is requiring faith-based groups to cooperate in fulfilling the government’s contraceptive mandate, which the groups believe violates their religious beliefs. The faith-based groups would like the same treatment as churches, which are protected from the mandate.
Justice Kagan, one of the justices in the majority for the same-sex marriage case, made clear during oral argument that she sees a distinction between how churches should be protected and how faith-related institutions should be treated:
I thought there was a- – – a very strong tradition in this country, which is that when it comes to religious exercises, churches are special. . . . We have said this most recently in Hosanna-Tabor, but it’s a long line of cases which says that there’s something very special about churches themselves.
While such a statement provides little comfort for religious institutions, it is helpful to know that the last line of defense, the local church, still receives special treatment in the eyes of a majority of the Supreme Court. Justice Kagan’s statement recognizing the special place of churches in America’s legal history probably explains the Hosanna-Tabor decision she mentioned, in which the Court ruled 9-0 in favor of a church in a major religious freedom case. In Hosanna-Tabor, the Supreme Court unanimously said that a church has the freedom to make its own hiring decisions because it is not the place of the government to interfere in internal church affairs.
But despite their special status, the Supreme Court’s ruling in Obergefell holds areas of concern for churches and individual believers.
Obergefell: Justice Kennedy on Religious Freedom
In Obergefell, the majority opinion written by Justice Kennedy does give cursory mentions in favor of religious liberty. Justice Kennedy references those who disagree with same-sex marriage based on decent and honorable religious or philosophical beliefs. He states that the Court is not disparaging either the people who hold these beliefs or the beliefs themselves. Sounds good, right? Those who want to get married can, and those who disagree with them are still free.
Kennedy continues that those who disagree with same-sex marriage will still have the right to “adhere” to their religious doctrines and “advocate” their beliefs. Though Kennedy doesn’t say it, his words sound a lot like he is describing a church setting with limited exposure to the public. Kennedy then references the First Amendment’s free exercise clause. Here is where Kennedy’s opinion gets into dangerous ground even for churches. Not by what is said, but by what is left unsaid: What type of advocacy will those opposed to same-sex marriage be allowed to engage in? Will those in opposition be allowed to speak freely in public without the threat of recrimination?
It seems clear to Justice Kennedy that private advocacy from one’s own property or church property, such as posting a sign on the front lawn, is probably acceptable. But what happens if the church wishes to engage the community? What if the church wants to rent a public hall and during those meetings speak on its beliefs regarding marriage? Justice Kennedy doesn’t answer this question, and his refusal to engage in the details by leaving the answer unsaid poses a dangerous precedent.
Another danger is that Kennedy uses different words than does the First Amendment. The First Amendment’s wording guarantees the right to “exercise” religion, not simply advocate, believe, or teach. Fortunately, the dissenters caught this, and nearly all of them remind the Court of the implications of the decision.
Obergefell: The Dissenters Respond
Chief Justice Roberts, the first up in dissent, states that the decision creates serious questions about religious liberty. The Chief Justice notes that in all eleven states where the voters or legislators adopted same-sex marriage, they also included strong protections for religious liberty. However, the other twenty-six states where same-sex marriage became legal through the Court’s imposition do not have such protections.
This gets to another problem with Kennedy’s majority opinion. While churches will be free to advocate and adhere to their beliefs, are others allowed to use their property contrary to their beliefs? Kennedy also leaves this question unanswered.
Later on in another dissent, Justice Thomas even predicts that individuals and churches will be forced to participate in and endorse civil gay marriages they disapprove of—or face legal repercussions. Therefore we now have religious freedom bills cropping up in state legislatures, including “Pastor Protection” acts in places like Florida and Texas. Florida’s law, which was signed by the governor in March, protects both pastors and their congregations from being forced to participate in a same-sex wedding ceremony or being required to allow anyone to use their facilities for same-sex weddings if contrary to their religious beliefs.
Roberts goes on to criticize Kennedy for writing how those opposed to same-sex marriage (the former majority of Americans) have disparaged and wounded their gay friends. Now that religious beliefs are seen as harmful by society and this Court, he argues, they will legally be treated the same way.
Thomas adds to the criticism of Kennedy’s sop to the religious about the freedom to advocate and teach, calling it a “weak gesture in a single paragraph” which will lead to ruinous consequences. While this might allow for some private freedom, he predicts 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.”
Whether this holds true or not remains to be seen, but as Americans who value freedom of conscience for all people regardless of their sexual orientation, we must watch and ensure that the predictions of the dissent do not hold true. The majority opinion does not give much hope, but as a nation dedicated to religious freedom, we can play a role in defending our natural and first freedom rights.
Be sure to follow along and read Part 2 next week, where I will look at the effect of Obergefell on faith-based organizations like schools and social service providers.