THE RELIGION GUY ASKS:
With the U.S. Supreme Court’s mandate to legalize same-sex marriage nationwide, what’s ahead for religious believers in traditional man-and-woman marriage alone? (The Guy poses this timely topic now in place of the usual question posted by an online reader.)
The historic June 26 legalization, by a one-vote majority of a deeply divided Supreme Court, demonstrates with stark clarity religion’s declining influence and stature in American culture.
The one aspect is obvious. Traditional marriage belief is firmly taught, with no immediate prospect of change, by the Catholic Church, Southern Baptist Convention, most other evangelical Protestants, many “historically black” Protestant churches, conservatives within “mainline” Protestant denominations, Eastern Orthodoxy, Latter-day Saints, Orthodox Judaism, Islam, and others. A massive 2014 Pew Research survey indicates those groups encompass the majority of Americans, something like 140 million adults.
Of course, not all parishioners agree with official doctrine. In a May poll by Pew, the 57 percent of all Americans supporting gay and lesbian marriages tracked closely with the 56 percent among those identifying as Catholic. That contrasted with only 41 percent of black Americans and 27 percent in the nation’s biggest religious bloc, white evangelicals.
The less-noticed aspect is the weakness of religions on the triumphant side, which generally followed the LGBT movement rather than exercising decisive leadership, unlike past church crusades that helped win independence from Britain, abolition of slavery, labor rights, child welfare, social safety nets, women’s vote, alcohol prohibition, civil rights laws, or withdrawal from Vietnam.
The three major faith groups prominent in pressing change in civil law did so rather recently, the Unitarian Universalist Association in 1996, Reform Judaism in 1997, and the United Church of Christ in 2005. Even “mainline” denominations that endorse clergy with gay partners have been hesitant in redefining religious marriage. The Presbyterian Church (USA) did so just this year. The Episcopal Church authorized same-sex weddings days after the Court’s ruling. The Evangelical Lutheran Church in American remains ambivalent. (The United Methodist Church, though also “mainline,” has defeated liberal bids for 43 years; the next showdown occurs in May, 2016).
The Supreme Court’s ruling stirred important secular debates about discerning new rights in a “living Constitution” versus the “original intent” of the Constitution’s literal text, and whether in a democracy federal judges or legislators and voters should determine social policies. But the overriding question now becomes how much the marriage equality right the 2015 Court found implicit in the Constitution’s 14th Amendment will overrule the explicit First Amendment right to “free exercise” of religion guaranteed since 1791. Liberals will renew efforts to outlaw discrimination against gays and lesbians at the federal, state, and local levels, while traditionalists seek exemptions, creating ever new clashes between the rights. A “First Amendment Defense Act,” introduced June 17 by 75 House and Senate Republicans, would bar federal discrimination against religious opponents of same-sex marriage in tax exemption, penalties, and benefits. And Alliance Defending Freeedom offers a 40-page “Protecting Your Ministry” booklet with tips to prevent future legal challenges.
The Court’s majority and minority opinions could hardly avoid this problem, considering ongoing conflicts and the urgent pleas in religious briefs filed in this case. In 2008, Marc Stern, now general counsel of the American Jewish Committee, noted such legal and administrative disputes in 311 footnotes for an article in “Same-Sex Marriage and Religious Liberty” (Rowman & Littlefield). Justice Kennedy’s opinion for the 5-member majority sought to calm anxieties: “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach” marriage traditionalism and engage in “open and searching debate.”
That wasn’t good enough for the 4 minority justices who joined a vigorous dissent written by Chief Justice Roberts. Because the Court’s ruling didn’t mention “exercise” of religion, he stated, believers “can take no comfort in the treatment they receive” in Kennedy’s ruling. Justice Thomas saw “potentially ruinous consequences for religious liberty.” And Justice Alito warned that those who now dissent publicly “will risk being labeled as bigots and treated as such by governments, employers, and schools.” Conservatives fear that would-be president Hillary Clinton’s references to “freedom of worship” rather than “of religion” mean limits to faith-based activities outside church walls.
In the legal mop-up during coming years, most analysts agree, government won’t force churches to perform same-sex weddings or hire actively gay clergy. But Notre Dame Constitutional scholar Patrick Deneen sees insistence by proponents of marriage redefinition “that all dissent be silenced — whether through threats of economic destruction, legal bludgeoning” or government power. Recent crackdowns involved religious objectors who sell wedding services to the public (florists, bakers, caterers). Roberts raised the sample issues of married student housing at religious campuses, religious adoption agencies, and tax exemption for religious groups. Other flashpoints may include certification of counselors and other professionals, college accreditation and admissions, freedoms for conservative campus clubs, hiring choices of secular businesses, and employment discrimination by “parachurch” ministries.
Loss of tax exemption would be the most threatening, and in the oral argument the Obama Administration’s solicitor general acknowledged “it’s certainly going to be an issue.” That’s a reasonable deduction from the Court’s 1983 decision that the IRS could strip tax exemption from Bob Jones University because its (now discarded) rule against interracial dating did not fit “the public interest.” The same could certainly be argued with the newly nationalized marriage law. Indeed, New York Times religion columnist Mark Oppenheimer now believes “it’s time to abolish, or greatly diminish,” tax exemption for groups that disagree with “settled public policy” on sexuality.
— The chief justice said “it is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage” and the winning side didn’t point to any difference. The Court’s ink was barely dry before a Ph.D. essayist at politico.com said liberals’ next cause should be “legal recognition of group marriages” because, as with gay marriage, monogamy-only is mostly “animated by purely irrational fears and prejudice.”
— Significantly, the response from 118 evangelical leaders not only opposed the ruling and urged religious liberty protections but advocated respect for government authorities, love toward those who disagree, and the belief that LGBT persons “are created in the image of God and deserve dignity and respect”: http://erlc.com/erlc/herewestand.
Texts of the Supreme Court majority and minority opinions: www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.