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In the wake of the Supreme Court imposing same-sex marriage, Meridian Magazine has published several articles about religious freedom so that our readers can understand what’s at stake and participate as knowledgeable citizens.
Gene Schaerr, the attorney who represented Utah in defending its marriage law, said at a BYU conference Tuesday that the Supreme Court lobbed a dozen religious freedom grenades with its recent marriage ruling which he called a “colossal mistake”.
Schaerr, who was called a profile in courage, left his high-profile Washington DC law firm where he was an illustrious appellate litigator, to defend marriage. He said, “Since the decision, I’ve been asked whether having made some personal and professional sacrifices whether I feel devastated. I can’t deny that the decision was an enormous disappointment and a tragedy for democracy, federalism, children and ultimately society, but I have no regrets about taking on the case and how we approached it.”
He said we need to leave a record in hopes that other nations and future generations will understand the issues and that the four dissenting justices have laid a groundwork for a future Supreme Court to reverse the Obergefell decision.
“Contrary to what we hear,” he said, “Justice Anthony Kennedy recognized that there is potential for enormous conflict between institutionalizing same-sex marriage and religious freedom.”
Three different times in the ruling Kennedy went out of his way to express respect for those whose view of marriage differed in statements like, “Marriage…is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”
While it is true, Schaerr acknowledges, that Kennedy’s comments are only about speech and not about the more robust freedom represented by religiously-motivated conduct, the justice still evinced respect for religion.
As in rulings by other judges, Kennedy in his majority opinion avoided saying that denying same-sex marriage was based on animus or ill will. He did not say it was irrational. He did not say that denial of same-sex marriage was a form of sex discrimination. Any of these rationales would have been far worse in the battles for religious freedom that lie ahead.
Nonetheless, Schaerr, said, “The opinion, unintentionally, I think, launched at least 12 religious freedom grenades that are still in the air, and I’ll call those the ‘dirty dozen.‘”
Six of those threats are to individuals and six to institutions.
Threats to Individual Religious Freedom
- Professional counselors of various sorts. For example, those who could well be forced to violate their religious beliefs by assisting a same-sex couple in preparing for marriage.
- Professionals in unrelated occupations. For example lawyers or business people who belong to organizations that teach traditional marriage could be penalized in their professions such as judges in California who now are forbidden from being members of the Boy Scouts.
- School teachers who could be forced to teach certain ideas that violate their faith.
- Parents with children in public schools who, for instance, can’t opt their children out of instruction that contravene their beliefs.
- Clerks and government officials who have to perform certain tasks that are against their beliefs or lose their jobs—such as issue same-sex marriage licenses.
- Wedding service providers who will be forced to participate in a ceremony that violates their beliefs.
Utah, Schaerr noted, has largely handled the first five of these issues in laws recently enacted here, and the last one isn’t an issue in Utah because it doesn’t have a public accommodations law. All six are likely to be big problems in many states for some time to come.
Threats to Institutional Religious Freedom
The problems listed below are likely to be issues on both the state and federal level.
- Tax-exempt status: The prospect of the federal government revoking tax-exempt status for institutions like churches and religious universities that object to same-sex marriage in word or in deed is very real. The United States Solicitor General acknowledged this as a possible problem during oral arguments for this case at the Supreme Court and the administration failed to walk back from this.
- Religious school housing policies. For example if a school like BYU provides married student housing, does it have to provide it for those who in the eyes of the faith are not married. This is a risk under federal law. (The same is true for Honor Codes.) What is to prevent the federal Department of Education to deny these institutions federal funding like Pel grants?
- Licensing/accreditation. It is possible that such things as licensing and accreditation could be denied to a university based on its teachings on marriage.
- Government contracts. Religious colleges and service institutions may be denied government contracts in such areas as federal research grants on topics that have nothing to do with marriage.
- Can a religious institution enforce religious hiring standards with regard to marriage? Title 7 has an exemption for religious institutions from its requirements, but that wouldn’t prevent the current administration, for instance, from imposing certain standards, like the acceptance of same-sex marriage as a condition for its funding.
- Ability to have marriages recognized by the state. Will churches be allowed to discriminate against same-sex marriages in their marriage practices and still have those practices recognized by the state?
What to Do?
Schaerr suggests that there is much we can do in the face of these threats. Some of it is rolled up in this quote by Elder Dallin H. Oaks, “Even as we seek to be meek and to avoid contention, we must not compromise or dilute our commitment to the truths we understand. We must not surrender our positions or our values.”
Elder Oaks said, “As followers of Christ, we should be examples of civility. We should love all people, be good listeners, and show concern for their sincere beliefs. Though we may disagree, we should not be disagreeable…We should be wise in explaining and pursuing our positions and in exercising our influence…When our positions do not prevail, we should accept unfavorable results graciously and practice civility with our adversaries.”
Schaerr said, however, that we must also be engaged and active in defending religious freedom. “Obergefell has opened a religious freedom can of worms..and it’ll be several years before we know where all the worms end up, and where they end up will depend in large part on what we do about it.”
- Calmly and consistently explain your religious freedom concerns to others.
- Work to get all the protective legislation that we can. The free exercise clause will not be enough to deal with most of these issues. The Restoration of Religious Freedom Acts will not be enough. The problem is that none of these authorities focus specifically on the conflict between same-sex marriage and religious freedom. There’s a very good reason to seek targeted protections for religious freedom in the face of same-sex marriage. Schaerr mentioned specifically that it is important to pass Senator Mike Lee’s First Amendment Defense Act. “It could protect religious institutions and people of faith against the most serious conflicts that could arise from federal law.
- Don’t be afraid to go back to the Supreme Court on a religious liberty issue. Schaerr said, “The Supreme Court has actually done a pretty good job in protecting religious liberty.” 83% of the religious liberty cases that have come before the Roberts court have ended with rulings protecting religious liberty.
The conclusion? Be civil and stand up for religious freedom rights.