Religious Organizations and Gay Marriage
What did Obergefell say and not say about "marriage equality" and what should concerned religious organizations do next?
The United States Supreme Court recently declared in Obergefell v. Hodges that all states
Religious Organizations and Gay Marriage
What did Obergefell say and not say about "marriage equality" and what should concerned religious organizations do next?
The United States Supreme Court recently declared in Obergefell v. Hodges that all states must recognize same-sex unions to the same extent as traditional marriages. Here, we discuss possible legal implications of this decision for religious freedom for people of faith and religious institutions. This post provides an overview of the opinion, examines the opinion's impact on religious freedom, addresses some of the storms people of faith and religious organizations may soon see on the horizon, and provides some practical ways to prepare.
What did the Supreme Court actually hold?
The Supreme Court's actual holding was two-fold. First, the Court held that same-sex couples may exercise the fundamental right to marry. In practical terms, for states that had laws defining marriage as between one man and one woman, those laws were held invalid; same-sex marriage is now available nation-wide. Second, the Court held that a State must also recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state. It is important to note that both these holdings apply to government action, not to private organizations or to individuals. That does not mean they won't be affected, but that some of these battles are still in the future.
Also, the Court suggested that sexual orientation is an immutable characteristic connected to a person's identity to be equated with liberty, which has continued to fuel the movement to enshrine the status at the federal level through legislation like the Employment Non-Discrimination Act (ENDA).
What did the Supreme Court not hold?
It is crucial to recognize what the opinion did not hold. First, the Court did not hold that laws defining marriage as between one man and one woman were irrational, motivated by nothing more than animus, despite using language suggesting that marriage laws were disparaging to same-sex couples. Even the majority opinion says, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises....” Slip op. at 19. The court's opinion still leaves room for the argument that a traditional view of marriage is not necessarily motivated by invidious discrimination–and by way of extension, that policies and practices supporting that traditional view are not necessarily motivated by hate.
Second, the Court did not hold that sexual orientation should be a new suspect class like race, religion, or national origin–entitled to special constitutional protection–even though it was asked to do so by the petitioners. This means that discrimination based on sexual orientation in employment, housing, and other areas that might otherwise be illegal under federal law, like Title VII or the Fair Housing Act, is not immediately actionable in court. (This may not be much comfort, because federal agencies like the EEOC are expanding their interpretation of Title VII to include sexual orientation and transgender. Also, other laws, like state statutes or local ordinances, might specifically forbid sexual orientation discrimination.)
Because the Court's holding was only directed to government action, whether private individuals and organizations must fall in line is far from clear. Almost undoubtedly lawsuits will follow to force private organizations to comply.
Why will this decision impact religious freedom?
This decision was a landmark one. Not simply because of what it decided, or how that decision was reached–although both are important and crucial for our society–but because of the implications for religious liberty. As Justice Thomas remarked in his dissent, “[h]ad 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.”
In other words, because the Supreme Court has made the issue of same-sex marriage one of federal, constitutional law–akin to saying it is written in the constitution itself–we as a society have not had the opportunity to grapple with what should be done when the right to same-sex marriage (now a constitutional, fundamental right) clashes with free exercise of religion (also a fundamental, constitutional right).
This question will be debated and will play out in protracted litigation. Some of the issues that may arise (some more likely than others) are as follows:
- What will happen when a religious college provides married student housing only to opposite-sex married couples?
- May religious adoption agencies refuse to place children with same-sex married couples?
- Will religious organizations, including churches, and religious schools and colleges, be faced with the loss of their tax exempt status if they adhere to a biblical view of marriage?
- Will pastors be forced to perform same-sex weddings?
- Will churches or other religious organizations be forced to host same-sex weddings in their facilities?
- Will insurance provide coverage for defending against lawsuits on these issues?
- Will religious organizations lose their tax exemptions?
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marr