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Here's What Supreme Court Says about Same-Sex Marriage and Religious Freedom

(UPDATED) Justices disagree whether one paragraph gives enough protection.
Here's What Supreme Court Says about Same-Sex Marriage and Religious Freedom Ted Eytan - Flickr

State bans on same-sex marriage are no longer legal in America, the US Supreme Court ruled 5-4 today.

So the question becomes: How will gay rights and religious rights be balanced?

Below is what the justices said in today's majority opinion and four dissents, as well as a summary of related survey data. [CT has also rounded up reactions from Christian thinkers and legal experts.]

Essentially, the majority believe the First Amendment gives religious groups and people "proper protection" to "continue to advocate" their beliefs on traditional marriage. But the dissenters are more skeptical, and concerned that "people of faith can take no comfort" in the ruling.

"Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises," acknowledges Justice Anthony Kennedy, writing for the majority in Obergefell v. Hodges, "and neither they nor their beliefs are disparaged here."

He explains that while that "sincere, personal opposition" cannot be "enacted law and public policy" without harming gay couples and violating the Fourteenth Amendment, he favors a continued "open and searching debate" between those who favor and oppose same-sex marriage.

"It must be emphasized that 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," writes Kennedy in a paragraph that will likely become the focus of scrutiny by church-state experts.

"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 so central to their lives and faiths," he continues, "and to their own deep aspirations to continue the family structure they have long revered."

Chief Justice John Roberts is less confident. In his dissent, he argues that today’s decision "creates serious questions about religious liberty."

"Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution," he writes. "Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for dissenting religious practice." But he says the Supreme Court is too much of a "blunt instrument" to do likewise. [Thus the evangelical argument for "if you can't beat them, amend them."]

"The majority graciously suggests that religious believers may continue to 'advocate' and 'teach' their views of marriage," writes Roberts. "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses."

Roberts looks ahead to the likelihood of future conflicts between gay rights and religious rights, such as the tax status of conservative Christian colleges. He notes:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.

There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

In his own dissent, Justice Samuel Alito argues today's ruling will make it "impossible" for further religious exemptions to be created.

"If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights," he writes. "The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas."

Alito notes:

The majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. 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.

In his own dissent, Justice Clarence Thomas argues that "the majority’s decision threatens the religious liberty our Nation has long sought to protect."

"It appears all but inevitable that [civil marriage and religious marriage] will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples," Thomas writes. He continues:

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.

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, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process.

Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.

On the overall question of same-sex couples being allowed to wed, Kennedy concludes:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

In contrast, Roberts concludes:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Here's what nearly 100 evangelical leaders have to say in response to the ruling, including David Platt, J. I. Packer, Richard Mouw, Jim Daly, Ron Sider, David Dockery, Al Mohler, and Richard Land. CT rounded up reactions as well.

A legal analysis by Managing Your Church, a CT sister site, looks at the uncertainty created for churches and pastors because the majority opinion "stopped short of stating a religious exemption." Church Law and Tax previewed the possible impact on churches and Christian colleges. Ed Stetzer advises evangelicals on what to do next. A CT editorial offers six ideas of its own.

SCOTUSblog has one of the first assessments of what the ruling means:

The decision on Friday will open marriage legally in the remaining fourteen states, and will give new legal protection for those who got married under court rulings that actually could not be considered truly final until the Supreme Court itself had decided the constitutional question. The decision nullified bans on same-sex marriage as well as bans on official recognition of such marriages performed outside a state. Both prohibitions, it said, violate the Fourteenth Amendment’s guarantees of due process and equal protection.
Much of the ongoing debate will focus on claims that same-sex marriage will intrude on the religious rights of those whose faith tells them that the institution should be open only for opposite-sex couples. A number of legislatures already had begun anticipating Thursday’s rulings, passing measures to give businesses and others a legal right not to accommodate same-sex couples. How long an active backlash will continue with intensity will be known only as it unfolds.

Religion Clause summarizes the ruling and the dissents.

More than 7 in 10 Americans viewed the legalizing of same-sex marriage nationwide as "inevitable," according to the Pew Research Center's latest report. About half of Americans support gays and lesbians marrying in their own states, and half support same-sex marriage being legal nationwide, according to the Associated Press (AP). Gallup found a similar split. LifeWay Research recently found that half of Americans want some separation between church and state roles in marriage.

Regarding how gay rights and religious rights will coexist, the AP noted:

The AP-GfK poll [in April] found that a slim majority of Americans (52 percent) say that wedding-related businesses should be allowed to refuse service to same-sex couples, but just 40 percent say that businesses more generally should be allowed to do so. Still, most said it's more important for the government to protect religious liberties than the rights of gays and lesbians if the two come into conflict, by a 56 percent to 40 percent margin.

This spring, Pew found Americans evenly split over whether businesses must serve same-sex couples.

Attention will likely next turn to how the decision will affect the tax status of Christian colleges. Pew recently examined the question. [Inside Higher Ed has a thorough roundup.]

Prior to SCOTUS’s decision, many blue states—and an increasing number of red ones—had already legalized same-sex marriage. In 2013, one year after President Obama announced his support for same-sex marriage, the Supreme Court struck down part of the Defense of Marriage Act, which had banned same-sex couples from federal marriage benefits.

The court managed to rule on DOMA and reject California’s Proposition 8 without commenting on the merits of whether same-sex marriage was a constitutional right.

While lower courts have overturned several dozen state amendments banning same-sex marriage in recent years, conflict over whether Americans can decline services for weddings has heated up. Evangelicals have increasingly embraced state versions of the federal government’s Religious Freedom Restoration Act, and some have lobbied for same-sex marriage laws to include sufficient religious exemptions. Advocates argue the strategy works better when attempted by lawmakers than by judges, as evidenced by two cases: the legislative compromise hailed in Utah and the RFRA law that backfired for evangelicals in Indiana.

Some Catholic and evangelical leaders have examined whether they should stop signing civil marriage certificates. Russell Moore of the Ethics and Religious Liberty Convention believes it’s too soon. “For now, by registering gospel-qualified unions as civil marriages and not officiating at unions that are not gospel-qualified, we call the government to its responsibility even as we call attention to its limits,” he wrote.

CT previously wondered whether Jesus would bake a cake for a gay wedding, a question which has divided some evangelicals and many Americans. According to a Pew study last fall, 49 percent of Americans said that all businesses should serve same-sex weddings, while 47 percent said business owners should be allowed to follow their personal religious convictions. White evangelicals were the lone group where the majority sided with conscience of the business owner (71%).

CT has reported on how evangelicals’ gay friends change their minds on marriage, but not on morality. According to Pew, the number of Americans who believe same-sex marriage is sinful increased from 45 percent in 2010 to 50 percent in 2014.

The Supreme Court’s verdict means evangelicals should expect both more challenges to florists, but also more opportunities to witness, argued law professor John Inazu.

CT recently featured divergent evangelical opinions on how pastors and church leaders should respond to a SCOTUS decision affirming same-sex marriage, as well as whether evangelicals should attend a same-sex wedding. In 2013, CT encouraged churches to “do much more than welcome” LGBT attendees. “A new attitude within churches of openness and hospitality, anchored in biblical grace and truth, would be a startling response for individuals or couples with same-sex attraction,” it stated. “We need to repent of the notion that sexual identity is as easy to change as a light bulb.”

Where same-sex marriage is legal, amending a church’s bylaws to define marriage as between a man and a woman might not be a bad idea, wrote Richard Hammar at Church Law & Tax Report. “The bottom line is that including a statement in a church’s bylaws defining marriage may be of some help should the church’s tax exemptions be challenged, or if the church is sued for violating a public accommodations law due to its refusal to host same-sex marriages, but it is no guaranty of protection.”

Religious schools may have a tougher time of it, he wrote. When the Supreme Court revoked Bob Jones University’s tax-exempt status in 1983 because of its racial discrimination, it noted that “certain governmental interests are so compelling as to allow even regulations prohibiting religiously based conduct.”

That means that doctrinal provisions of religious schools “may not be enough to fend off IRS challenges to tax-exempt status if the IRS or the courts conclude that the right of same-sex couples to marry is a fundamental and compelling public policy,” he wrote. “During the oral arguments last month before the Supreme Court, Justice Alito asked the Solicitor General (who was arguing that same-sex couples have a constitutional right to marry) if the Bob Jones University ruling would result in the loss of tax-exempt status of any religious school that opposed same-sex marriage. The Solicitor General responded, ‘it’s certainly going to be an issue.’”

[Photo courtesy of Ted Eytan - Flickr]

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Related Topics:Same-Sex Marriage
Posted:June 26, 2015 at 9:03AM
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