Do Christian groups have litigation in their future after the Supreme Court decision in Obergefell v. Hodges?
On 26 June 2015, the Supreme Court of the United States delivered a 5–4 decision in favor of the petitioners (Obergefell), 14 same-sex couples seeking marriage equality in their home States of Michigan, Kentucky, Ohio, and Tennessee. The decision effectively elevates same-sex marriages to a protected Constitutional right. See the sources at the end of the post for additional reading options.
Within 24 hours of the decision in Obergefell v. Hodges, opposing arguments from conservative sectors of society were appearing in the media. I excerpted three examples and pasted them below:
- Gov. Greg Abbott of Texas, a Republican, issued a directive to state agencies saying that employees should not be penalized for refusing to act in violation of their beliefs. “No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage,” he said in a statement.
- Gov. Bobby Jindal of Louisiana, a Republican candidate for president, warned that the court decision “will pave the way for an all-out assault against the religious freedom rights of Christians who disagree.”
- Jim Daly, the president of Focus on the Family, a prominent conservative Christian group based in Colorado Springs, said he was worried that Christians would be subjected to “prejudice and persecution” if they stood against same-sex marriage. He suggested that a variety of issues were likely to be litigated, including whether the ruling would force Christian universities to house same-sex couples in dorms for married students and whether cake makers and florists would have to work same-sex weddings.
From the time I became aware of the Supreme Court decision, I knew that these types of arguments would be the most common from religious and other conservative groups opposed to same-sex marriages. I also knew that the underlying premise of these arguments are false, as stated. Point #1: Issueing a directive to State agencies excusing employees from conducting the “Peoples’ business” if it should be counter to their religious convictions is definitely problematical and undoubtedly unconstitutional. The State is in the business of serving the needs of the citizens of the State. Of course, that service is to be rendered to citizens in accord with the State’s constitution. In other words, without regard to sex, creed, race, gender, etc. Any employee of that State is hired to perform a task or duties so that the State can meet it’s obligation to it’s citizens. If a State executive issues a directive like the one issued by the Texas governor, then that State must ensure that the service is rendered by an employee who DOES NOT have those objections. If the State wishes to relieve the distress that some of it’s employees may encounter in this circumstance, it must do so in a manner that does not violate it’s own, as well as the Federal, constitution. Point #2: The majority decision in Obergefell v. Hodges, written by Justice Kennedy, goes to great length to explain that extending the marriage right to same-sex couples IS NOT an infringement of the freedom of religion guaranteed to all. One does not exist by infringing on the other. Both can exist as a protected right. Civil union (civil marriage) is the right that same-sex couples won in Obergefell v. Hodges. For centuries, religious unions and civil unions were viewed differently by the multitude of denominations. This decision does not alter that. A same-sex couple walking into a Roman Catholic church and demanding a Catholic marriage IS NOT what this court decision permits. Religious institutions will continue to practice their faiths and conduct rituals in accordance with the tenets of that faith as they’ve done before. That same-sex couple will probably be denied that Catholic marriage and that religion is not under any constitutional directive to do so. On the other hand, the State office in charge of civil unions does bear a constitutional burden. Point #3: The statement by Mr. Daly of the Colorado Christian group is a bit more complicated. My understanding of how a religiously affiliated organization is to handle same-sex couples is to look at the Affordable Care Act (ACA). This law initially required institutions religiously affiliated to provide health coverage that included family planning and birth control. This is where we find an answer to Mr. Daly’s questions. Many religiously affiliated institutions (hospitals, schools, commercial businesses) immediately sought exemptions to certain requirements of the ACA. The major exemptions based on religious doctrine were granted. Of course, this meant that employers had to publicise their stance to prospective employees before hiring them. If we extend this scenario to a religiously affiliate school, like Fordham University, then they should be able to abide by the tenets of their faith and exclude dormitory co-habitation from same-sex couples. On the other hand, same-sex couples must realize that religiously affilated institutions carry many of the same objections and bars to service that houses of worship do. This decision DOES NOT give same-sex couples the right to subvert pre-existing federal protections in matters pertaining to religiously affiliated institutions. The only area where I see a sticking point involves religiously affiliated institutions that receive federal aid (Tax Exempt Status, Subsidies, etc.). In this case, we have a circumstance similar to an example I gave earlier regarding Texas. If tax dollars are being funneled to an institution that does not provide a service to tax-paying Americans who fall within the category that may partake in same-sex marriage, then you have a big problem. This decision DOES NOT cover this circumstance.
Note: My students are encouraged to check out these sources for an overview of the topic.
- New York Times, Supreme Court Ruling Makes…
- New York Times, Conservative Lawmakers…
- New York Times Interactive
- Video: The Loving Case
- History Sources mindmap.
- A SCOTUS syllabus is available to provide details along with additional documentation provided by the Organization for American Historians
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