Today’s historic 5-4 Supreme Court decision creates a federally recognized right for same-sex couples to marry. But what it means for churches and clergy who oppose such unions remains unclear, two legal experts said.
Such uncertainty likely will lead to more litigation, perhaps even future challenges to the tax-exempt statuses of congregations opposed to same-sex marriage, unless additional legislation is passed to prevent such outcomes.
The majority opinion issued with today’s ruling by Justice Anthony Kennedy noted the “proper protection” afforded to religious organizations by the First Amendment “as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
But the opinion stopped short of stating a religious exemption, an omission highlighted in Chief Justice John Roberts’ dissent:
Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.
The distinction between “teaching” and “exercise” is a critical one, said church legal expert Frank Sommerville, an Editorial Advisor for Christianity Today’s Church Law & Tax Team. “The majority opinion recognizes that sincerely held religious beliefs are protected by the First Amendment. The majority opinion does not explicitly recognize a religious freedom to act on those sincerely held religious beliefs,” Sommerville wrote in an email interview.
That likely will open the door to more lawsuits, said Joshua Hawley, an associate professor of law at the University of Missouri who served as a judicial clerk for Chief Justice Roberts in 2007 and 2008. “Same-sex marriage is the new normal as of today. I do not think that means clergy will be forced to perform those marriages against the teaching of their churches. But there is a lot of gray area between being forced to perform same-sex marriages against one’s church teachings and then what the court said today as far as same-sex marriage being recognized as a constitutional right afforded protection at every level of government,” Hawley said.
“There’s a lot of litigation to come,” he added.
The legal questions most likely to surface: Whether ministers must solemnize same-sex marriage ceremonies and whether churches opposed to such unions must open their facilities for ceremonies. In both instances, the key angles will be whether fees are charged and access to nonmembers is provided, thus potentially subjecting the ministers and the churches to public accommodation and antidiscrimination laws that other businesses face, Hawley said. Issues related to same-sex marriage recognition in the context of nonministerial workers employed by a church also are possible, he said. “I expect we will see those litigated sooner rather than later,” Hawley added.
Another potential challenge: Tax exemption. “The majority opinion does not address whether religious people have retained the right to discriminate on the basis of sexual orientation due to sincerely held religious beliefs,” Sommerville wrote. “The majority opinion leaves open the possibility that tax exemption, and other government benefits, be conditioned on the church recognizing and embracing same-sex marriage.”
Sommerville and Hawley both said legislation could be enacted to help provide specific religious protections and defuse the threat of lawsuits. Congressional action isn’t likely even if enough support emerges in both the House and Senate, since a veto by the Obama administration likely would loom. But action at the state level is possible, as was the case on June 11 in Texas, Hawley noted.
Hawley said it also bodes well that today’s majority opinion did not describe opposition to same-sex marriage as “animus,” a constitutional law term meant to signal a viewpoint’s hostility and discriminatory intent. An “animus” viewpoint is disregarded by the court. “That’s an encouraging sign,” he said of the absence of the term. “That’s important for churches and clergy as they seek to defend themselves in future cases.”
Senior Editor Richard Hammar will go deeper on the same-sex marriage decision and what it means for churches and clergy in the September/October issue of Church Law & Tax Report.
Church Law & Tax Report has previously covered the issue of same-sex marriage, including the questions of clergy exemption and facility use, and whether churches should amend their bylaws to state their positions on marriage.
Sister site Christianity Today also fully recaps the coverage of today’s decision.
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