MRBlog | Religious Liberty in the Supreme Court’s Marriage Equality Decision

By Thomas J. Whitley

Today in a landmark ruling, the Supreme Court said that marriage is a fundamental right that must be extended to same-sex couples (Obergefell v. Hodges). This decision comes as the national opinion continues to shift in support of marriage equality. It is a day for celebration for many who have been denied access to the same rights and benefits as their heterosexual neighbors. Some, though, fear that this decision will lead to a rolling back of religious liberty protections for those who oppose marriage equality. Republican Presidential hopeful Mike Huckabee, for instance, says in a defiant statement that “this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.” Conservatives worrying about being discriminated against in the wake of this ruling is amusingly ironic.

Anthony Kennedy addressed the religious liberty aspect of this decision in his opinion, reassuring those who would listen that no one’s religious freedom would be infringed.

Finally, 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. 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, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. (Opinion of the Court, 27)

Chief Justice John Roberts, who wrote the first of four dissents, did not buy Kennedy’s assertion.  He notes that while “the majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage, this is not enough. Indeed, “the First Amendment guarantees . . . the freedom to “exercise” religion. Ominously, that is not a word the majority uses” (Roberts, C. J., dissenting, 28). Roberts does not expound upon his understanding of the difference between one being able to “advocate” and “teach” their religious beliefs and one being able to “exercise” their religion in the context of this issue. Indeed, it would appear to supporters of marriage equality that a certain strand of conservative Christianity has long been established by the State in this country with its laws that made illegal homosexual intimacy and homosexual marriage. Because Roberts knows that churches, synagogues, mosques, and pastors will not be affected by this ruling in any way whatsoever, save for possible pressure from their congregants, Roberts turns to the more difficult questions surrounding other religious organizations.

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. (Roberts, C. J., dissenting, 28)

These are the questions around which the recent “religious freedom” battles will be fought. We see here the economics of “religious liberty.” While some argue that exempting religious organizations from the tax burden which all individuals and other corporations must bear is itself a form of religious establishment, these organizations are lobbying for the ability to take the government’s money but not to have to abide by its rules. The recent spate of Religious Freedom Restoration Act laws being considered, passed, and amended reveals that many in state governments agree with this desire.

Justice Clarence Thomas, in a separate dissent also laments the “ruinous consequences for religious liberty” (Thomas, J., dissenting, 15), though he fails to offer any specific examples of how this might occur. Religious liberty, Thomas says, is about more than simply allowing someone to teaching their religious principles, but rather “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” (15). Again, what civil restraints are placed upon ones religious practice by this ruling are left unsaid.

Justice Samuel Alito’s remarks offer us a glimpse into the second main concern (money being the first) at the heart of the “religious liberty” argument, namely, that people will think less of those who oppose marriage equality.

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. (7)

I do not discount Alito’s fear. By all accounts, he’s probably right. We are seeing such a move in how society views those who fly and display the Confederate Flag in the wake of the Charleston shooting. Over time we will likely see this position viewed in much the same way as opposition to interracial marriage. Yet, I do not recall any constitutional protection against other people thinking poorly of you.

Legal battles will continue against marriage equality but they will be on this “religious liberty” front. Should one be protected for exercising their “religious liberty” when acting on behalf of the State? North Carolina’s state legislature thinks so. It overruled a veto by its Republican Governor to say that government officials are allowed to refuse performing a same-sex marriage if it violates a “sincerely held religious objection.” Should private businesses be able to discriminate against a customer based on a religious belief? Conservative cake bakers, wedding photographers, and florists want to know. In the meantime, other bakers, photographers, florists, and divorce attorneys are celebrating.


Photo by Ted Eytan via Flickr