ELIZABETH ASKS:<\/p>\n
Liberals in the U.S. frequently point out that clergy will not be forced to perform same-sex marriages against their beliefs. However, are there other religious freedom issues at stake with the new Supreme Court ruling?<\/p>\n
THE GUY RESPONDS:<\/p>\n
The answer is yes, lots of them, according to religious groups that oppose same-sex marriage but also certain legal experts who advocate same-sex marriage and yet worry about threats to religious freedom.<\/p>\n
The Supreme Court\u2019s decision to abolish the federal Defense of Marriage Act raises the prospect that same-sex marriage will eventually be legalized nationwide. That could set up decades of conflict and throw traditionalists on the defensive \u2014 culturally, politically, legally \u2014 as they already are in some situations. Analysts agree that, yes, the Constitution means clergy cannot be forced to conduct same-sex weddings, and churches should enjoy freedom to preach, though \u201chate speech\u201d codes could possibly come into play. Loss of tax exemption would be ruinous and some think that could eventually hit at least \u201cparachurch\u201d agencies, due to Supreme Court language in a 1983 Bob Jones University case.<\/p>\n
That leaves numerous shorter-term problems. A major declaration from the U.S. Catholic bishops last year warned that \u201creligious liberty is under attack.\u201d The headlines go to Catholic (and Protestant) resistance to the government\u2019s health-care mandate to cover contraception, sterilization, and alleged abortifacients. But the bishops also cited two gay-related issues: 1) Colleges barring student organizations that require leaders to uphold traditional sexual morality. 2) Catholic adoption and foster care agencies in three states forced to disband rather than place children with same-sex and cohabiting couples.<\/p>\n
Catholic leaders also joined an interfaith appeal last year alongside key evangelical, Mormon, and Orthodox Jewish officials. This group said hundreds of laws and regulations could impact groups and individuals, not just regarding adoption or campus clubs but job discrimination, employee benefits, religious schools and camps, healthcare and eldercare, private landlords and wedding suppliers, professional accreditation for counselors, civil liability, tax policy, and the like. The interfaith group said \u201cthis is not idle speculation, as these sorts of situations have already come to pass.\u201d<\/p>\n
That warning received strong support in the American Jewish Committee\u2019s \u201cfriend of the court\u201d brief filed with the Supreme Court. It was written by AJC General Counsel Marc Stern, a top advocate of strict church-state separation for decades, and law Professors Douglas Laycock of the University of Virginia and Thomas Berg of the University of St. Thomas.<\/p>\n
]The AJC said same-sex marriage should be legal, despite religious objections, but was equally concerned about \u201cnumerous religious liberty\u201d issues on which it believes courts must protect conscientious objectors. The brief said U.S. religions could \u201cface lawsuits, civil penalties, and loss of governmental benefits.\u201d To the AJC, only a \u201ccompelling\u201d government interest should interfere with religious conscience, for instance when a religious agency has a \u201clocal monopoly\u201d and gay and lesbian couples cannot \u201creadily obtain comparable services\u201d elsewhere. The AJC observed that courts have been much less likely to protect conscience than legislatures, where traditionalists have some leverage.<\/p>\n
Professor Laycock co-edited a valuable book on all this: Same-Sex Marriage and Religious Liberty: Emerging Conflicts<\/em> (Rowman & Littlefield, 2008). The seven contributors disagree on same-sex marriage but all think redefinition of marriage will threaten religious rights. Laycock\u2019s essay laments that support for both gay rights and religious rights is \u201ca rare position,\u201d and observes that gay advocates want not just personal rights but public and private affirmation and seek to suppress dissent. Stern supplied an article that features 311 footnotes citing religious liberty problems in court, legislative, and administrative law precedents.<\/p>\n The Supreme Court\u2019s own 5-4 split foretells future hostility. The majority opinion contended that the purpose of opposing marriage change is simply \u201cto disparage and to injure\u201d gays and lesbians. Chief Justice Roberts protested that the majority unfairly accused traditionalists of a \u201csinister motive,\u201d or as Justice Scalia put it, \u201chateful hearts.\u201d Religious traditionalists insist their unyielding opposition is not bigotry but a matter of conscience and what they see as the well-being of society.<\/p>\n (That describes the Catholic Church; Eastern Orthodoxy; Mormonism; Orthodox Judaism; Islam; myriad conservative, evangelical, pentecostal<\/a>, black, and Hispanic Protestants; and some in the more liberal \u201cmainline\u201d Protestant churches.)<\/p>\n More on past, present, and future disputes:<\/p>\n \u2014 Traditionalists\u2019 interfaith appeal (2012):<\/p>\n http:\/\/www.nae.net\/resources\/news\/714-open-letter-on-marriage-and-religious-freedom<\/a> <\/tt><\/p>\n \u2014 Catholic bishops\u2019 religious liberty declaration (2012):<\/p>\n http:\/\/www.usccb.org\/issues-and-action\/religious-liberty\/our-first-most-cherished-liberty.cfm<\/a><\/p>\n \u2014 American Jewish Committee\u2019s Supreme Court brief (2013):<\/p>\n