The U.S. Supreme Court’s 5-4 ruling in Obergefell v. Hodges may have established same-sex marriage as a constitutional right, but it opened a whole host of controversies.
Among the most contentious: Can same-sex marriage and religious liberty coexist? Justice Anthony Kennedy, writing for the Court, offered some assurance that religious freedom is safe and churches are free to continue advocating and teaching their beliefs. But Chief Justice John Roberts in his dissenting opinion pointed out that the First Amendment guarantees free exercise of religion, not simply advocacy.
Will churches be forced to perform weddings that run counter to their doctrines? Could the federal government go after religious organizations’ tax-exempt status if they refuse to comply? Ben Boychuk and Joel Mathis, the RedBlueAmerica columnists, weigh in.
JOEL MATHIS — No, folks, the gay sky is not falling.
Yes, civil marriage equality was just sanctioned by the Supreme Court – but for reasons that had zilch to do with the First Amendment. (Your religious freedom generally is never affected in any way by my marriage.) And here’s the thing: When the First Amendment does come into play, it almost always wins before the court.
Consider this: The exact same court that just approved gay marriage also, not long ago, decided in the Hobby Lobby case that the First Amendment religious rights of business owners were sacrosanct enough that they could refuse to purchase insurance plans for their employees that include contraceptive coverage. It’s the exact same court that not long before that protected Fred Phelps’ right to conduct ugly homophobic protests at the funerals of dead soldiers – again, because of the First Amendment’s protections on freedom of expression just couldn’t be curtailed.
That’s the court that’s going to force priests to ignore their own theology and conduct marriage ceremonies for gay people? Uh, no.
Even if the court took leave of its senses, though, getting to that point would also require that Congress – or a majority of legislators in some state – suddenly decided they were hostile to their religious constituents. That’s what it would take to pass such a law. Even in a nation increasingly supportive of gay marriage, that’s not going to happen. Period.
Are the tax exemptions of churches and church colleges in danger? Possibly. Solicitor General Donald Verrilli said as much during oral arguments in April. Then again: Politicians would have to disregard their religious constituents to do so. So: Unlikely.
Listen: These scenarios are almost entirely fiction, so close are they to political and legal impossibility. They’re invented by people who don’t have a reason to be plausibly victimized by gay marriage, and so they dream up nightmare scenarios in order to claim martyrdom in the matter.
Let the would-be martyrs have their nightmare fantasies. Reality – that gay marriage is here, and here to stay – is rightly, joyously celebrated by the rest of us.
BEN BOYCHUK — Blithe assurances from Justice Kennedy and Joel Mathis notwithstanding, the Supreme Court’s Obergefell decision will almost certainly lead to conflicts between the First and 14th Amendments of the Constitution. The survival of religious liberty in the United States is far from certain.
How could that be? Yes, the First Amendment’s language is fairly unambiguous: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But the Supreme Court’s First Amendment jurisprudence often is not.
It’s amazing how quickly first principles can be eviscerated as soon as the lawyers get involved.
For every high-profile case such as last year’s Hobby Lobby decision – which drove many of the same people celebrating the Obergefell outcome completely bananas – there is a case like Martinez v. Christian Legal Foundation, a 2010 decision in which the court held 5-4 that taxpayer-funded colleges and universities could deny religious groups use of school facilities because of their opposition to same-sex marriage.
And let’s not forget the court’s 1983 decision in Bob Jones University v. United States. The court said it couldn’t outlaw a church’s practices – free exercise and all that. But stripping its tax-exempt status? No problem, as long as the church runs afoul of “fundamental national policy,” such as racial equality. How long until this court extends the logic of Bob Jones to same-sex marriage? Joel says in an aside, “Your religious freedom generally is never affected in any way by my marriage.” That’s true – because Joel is married to a great woman. No mainstream religious institution in the United States would have thought twice about wedding them. Now, churches will be forced to decide between doctrine and civil law.
Given precedent and current trends, it isn’t far-fetched to imagine future court decisions that limit “free exercise” of religion to the inside of a church, synagogue or mosque.
Or maybe not! It wouldn’t require much to erode the foundations of the First Amendment. A few lawsuits targeting small churches that lack the wherewithal to fight a protracted legal battle would be enough to get the ball rolling. Don’t be surprised if in a few years we’re left with religious liberty in name only.
Ben Boychuk is associate editor of the Manhattan Institute’s City Journal. Joel Mathis is associate editor for Philadelphia Magazine.
