Ruling in favor of Obergefell, the Supreme Court decided that states must issue a marriage license between people of the same sex, legalizing same-sex marriage in all 50 states. In this week's conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.
By: Robert Tuttle and Ira Lupu
For many years, religious conservatives have been sounding alarms about the threat that marriage equality poses to religious freedom. As same-sex marriage spread across the United States and the world, those alarms became increasingly intense, with predictions that religious conservatives would suffer all manner of harms, from civil penalties to criminal sanctions. Now, in the immediate aftermath of the Supreme Court’s decision in Obergefell v. Hodges that the Constitution requires all states to recognize marriage equality, we’ve witnessed an outpouring of prophecies that the apocalypse for religious freedom is near. These prophets of doom are just wrong, except in one crucial respect.
Virtually all of the publicly expressed predictions of the threat to religious freedom are either wrong or significantly overstated:
1) Clergy who teach that marriage is only for different sex couples, or who teach that acts of same-sex intimacy are sinful, will be punished for hate speech.
To the best of our knowledge, there has been only one such prosecution anywhere in the world—in Sweden, and that case ended in victory for the pastor. Several other nations have hate speech laws, which might conceivably extend to expression of anti-gay animus by religious leaders. But the United States has the most vigorous free speech culture in the world, and the Supreme Court has broadly and repeatedly rejected any notion that hateful speech about minority groups can be punished. The most recent decision, in 2011, involved virulently anti-gay speech by members of the Westboro Baptist Church, and an 8-1 Supreme Court majority ruled that the First Amendment protected the speakers from liability. Those who utter venomous condemnation of gays and lesbians may receive social condemnation, but they will never be subject to legal sanctions for what they say or think.
2) Religious institutions or ministers will be forced to marry same-sex couples.
This concern is implicit in the many laws that guarantee churches and clergy the freedom to decide whom to marry. But those laws are wholly unnecessary. The Constitution’s Religion Clauses would certainly bar any effort by the government to force a religious institution or cleric to perform a religious rite.
3) Religious institutions that condemn same-sex intimacy and same-sex marriage will lose their tax-exempt status.
This claim rests on a single decision from the Supreme Court in 1982, Bob Jones University v. United States, in which the IRS successfully revoked the tax exemption of the university because of its policy against interracial dating. But Bob Jones involved an entirely different context, in which the full force of the federal government was being deployed against efforts to avoid desegregation of schools. Since then, the IRS has never invoked its authority to revoke tax exemptions on grounds of discriminatory behavior by religious organizations. It has never proceeded against religious institutions that exclude women from ministry, preach against divorce, inveigh against contraception, or teach fundamentalist doctrines about a wife’s duty to submit to the husband as the head of household. It is simply unreasonable to believe that the IRS will now start revoking tax exemptions of religious institutions because of their teachings about same-sex relationships.
4) Businesses that refuse to provide goods and services for same-sex wedding ceremonies will be sued and driven out of business.
This claim is a distortion rather than an outright falsehood. Some states forbid for-profit businesses from discriminating based on sexual orientation in the provision of goods and services. But the federal government and more than half the states do not prohibit this kind of discrimination. The legalization of marriage equality, before and after Obergefell v. Hodges, did NOTHING to alter the potential legal liability of business owners who refuse to provide goods and services for particular ceremonies. In many states that did not recognize marriage equality, same-sex couples have for years exchanged vows, participated in ceremonies of marriage both religious and secular, and held receptions to celebrate those arrangements. Indeed, the most famous lawsuit about refusal of service to a same-sex wedding is Elane Photography v. Willock, which arose in New Mexico before that state recognized same-sex marriage. The discrimination claim had everything to do with the photographer’s refusal to serve a lesbian couple, and nothing to do with civil recognition of their union. So even if the Supreme Court had ruled the other way in Obergefell, businesses in all 50 states would be facing exactly the same legal situation they do now. The legal status of marriage is simply not relevant in these cases.
In one respect, albeit one not frequently voiced, the Court’s decision in Obergefell does signal the end times. The legal definition of marriage as a union of a man and a woman rested solely on religious grounds and lacked any secular rationale. Even the argument based on tradition was a mask for religion, because in the West that tradition has expressed a religious claim about the created nature of humanity. Laws that depend exclusively on divinely revealed authority have no place in our polity. Like the constitutionally-mandated end of religious exercises in public school, and the similar end of the ban on the sale of contraceptives, Obergefell may well be perceived as an apocalypse by those who believe that we live in a land governed directly by divine law. But that is not the government created by our Constitution.
Robert Tuttle is the David R. and Sherry Kirschner Berz Research Professor of Law and Religion at the George Washington University Law School. Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law Emeritus at the George Washington University Law School, which he joined in 1990.
This piece was originally authored on June 29, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.