- - Tuesday, June 30, 2015


Millions of religious Americans—many in favor of legalizing same-sex marriage and many opposed to it—have been anxiously watching to see whether the federal courts would open the door for government to penalize them for living their lives according to their religious beliefs about marriage.  They rightly believed that—regardless of what the federal courts decided about marriage—they should continue to fully affirm all Americans’ inherent rights to live their lives according to their faith. 

Ugly periods of anti-religious discrimination against Jews, Catholics, Mormons, and Muslims have taught our nation that protecting people of all religions against discrimination is no less important than protecting gays and lesbians.  People of faith thus had been hoping that if the U.S. Supreme Court created a right to same-sex marriage it would also fulfill its constitutional duty by roundly reaffirming the free exercise of religion guaranteed by the First Amendment.

Friday’s decision offers these Americans decidedly scant reassurance. 

Indeed, emboldened by a conspicuous lack of reaffirmation of First Amendment principles in Justice Kennedy’s majority opinion, opponents of religious freedom are already using the decision as a springboard for attacks on the tax-exempt status of any dissenting organization—including churches.  Most calls are coming from the fringe. But some of these extremists are individuals such as Mark Oppenheimer, a New York Times columnist whose attack was quickly published by Time Magazine.  

The Supreme Court’s same-sex marriage decision included little to diffuse the disingenuous and unprincipled hostility that has been building against religion.  Vociferous attacks reached a crescendo in this April’s hysterical siege war against Indiana’s new Religious Freedom Restoration Act (RFRA), a law almost identical to the federal RFRA enacted by a nearly unanimous Congress and successfully used to protect Christians, Jews, Muslims, Native Americans, and many others.  In choosing to omit a meaningful defense of religious freedom, Friday’s Supreme Court decision has added fuel to the anti-religious fire. 

In its 2013 decision striking down a section of the federal Defense of Marriage Act, a five-justice majority led by Justice Anthony Kennedy claimed the only reason anyone would oppose same-sex marriage is hatred or—to use the Court’s more erudite term—animus.  The very limited good news is that this time the same five-justice majority restrained itself from directly labeling religious dissenters as haters.  Friday’s opinion offered an appearance of tolerance—acknowledging religious dissenters’ right to “adhere to” and “teach” their beliefs. 

What is ominous, however, is not what the Court said but what it should have said—and didn’t.  The five-justice majority stopped far, far short of a reaffirmation of the First Amendment guarantee of Americans’ free exercise of religion. 

It is wonderful that the Court assured people of faith that they still have the right to “adhere to” their beliefs, which when translated means unlike in today’s Middle East no one will be subjected to threats and force to recant their beliefs.  Sadly, this is as if the majority offered assurances that the homes of dissenting Americans will not be subjected now to arbitrary, warrantless searches.  Nice to know.    

Similarly, it is good that the Court affirmed that dissenting Americans have the right to “teach” or “advocate” for their beliefs.  But the right to free speech secures this freedom without any need for a First Amendment right to the free exercise of religion.

Reaffirming rights that were never even in question—as if that were some sort of assurance—naturally raises far more concerns than it alleviates.

In his dissent, Chief Justice Roberts found it disturbing that the majority chose not even to mention the “exercise” of religion.  “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage,” he wrote.  “Unfortunately,” he added, “people of faith can take no comfort in the treatment they receive from the majority today.” 

Where the rubber meets the road for religious freedom is the right to practice one’s faith or—using the words of the First Amendment omitted by the Court—the right to the free exercise of religion.  In twenty-first century America, all courts—first and foremost the U.S. Supreme Court—should be making it abundantly clear that no law or government should penalize anyone for peacefully practicing their religious beliefs on marriage. 

It remains to be seen how some of the lower courts might flesh out protections for the free exercise of religion in the marriage context.  But it is now more imperative than ever to enact state and federal legislation.  Proposals like the federal First Amendment Defense Act that Senator Mike Lee and Representative Raul Labrador introduced in Congress earlier this month must ensure that officials do not begin to discriminate against Americans of faith because of their religious beliefs and practices involving marriage.  

Brian Walsh is the president of the Civil Rights Research Center.

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