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: Jennifer Marshall
The Supreme Court has mandated same-sex marriage for all 50 states. No one should lose freedom as a result of that decision.
To ensure that Americans have as much freedom after the redefinition of marriage as they did before, the law should prohibit government discrimination against those who dissent from the conclusion of five justices in Obergefell v. Hodges.
During oral arguments in the case, Solicitor General Donald Verrilli made clear that the nonprofit tax status of religious schools would be at risk if the Court decided to redefine marriage. Within days of the Obergefell decision, a New York Times columnist writing in TIME suggested that religious organizations who do not get in line with the new public policy should lose their nonprofit tax status.
Such suggestions have prompted 15 state Attorneys General to write to Congress calling for protection of nonprofit tax status of groups that might differ from the Supreme Court’s decision on the government’s definition of marriage. Seventy leaders of religious education institutions have expressed similar concerns in a letter to Congress.
Americans are free to live as they choose. But no one should insist that government coerce others to agree with them. All Americans should continue to have the freedom to speak and act in accord with their convictions about marriage as the union of one man and one woman. No one should face government penalties for holding the same views about marriage that President Obama stated until three years ago.
Religious schools and colleges are and should remain free to teach a biblical view of sexuality and marriage, and to hold their students and faculty to conduct standards consistent with that teaching. Faith-based ministries helping individuals overcome addiction and poverty are and should remain able to form a staff that shares and lives according to the tenets of their mission.
A bill introduced in Congress, the First Amendment Defense Act, seeks to guarantee these freedoms. The legislation would prevent the federal government from discriminating against individuals or groups who believe that marriage is the union of one man and one woman. Federal bureaucrats would be prohibited from revoking a Christian school's nonprofit tax status, for example, or discriminating against such groups or individuals in grants, contracts, and accreditation. The First Amendment Defense Act would still allow the federal government to provide benefits and services to all authorized under federal law while respecting religious freedom of all.
Governors can take similar action to prohibit their state agencies from retaliating against, for example, the 50 million Americans who voted for their state laws to affirm the definition of marriage as one man and one woman.
Regrettably, the Supreme Court’s decision in Obergefell disregarded these votes—which represented more than 60 percent of those who had the opportunity to decide democratically on this issue. Nothing in the Constitution required the Court to intervene in this matter, which was the subject of a vigorous public debate.
In his dissent, Chief Justice Roberts quoted Justice Ginsburg’s reflection about the effect of Roe v. Wade on the abortion debate: “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” The Supreme Court has now issued a similarly unsettling opinion on marriage. Policies like the First Amendment Defense Act can help reduce friction and guarantee freedom in post-Obergefell America.
Jennifer A. Marshall is vice president for the Institute for Family, Community, and Opportunity at the Heritage Foundation, where as director of domestic policy studies she oversees research in education, marriage, family, religion, and civil society.
This piece was originally authored on July 27, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.