*This five-part series is adapted from Matthew Bracey’s presentation, “Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage,” Theological Integrity Seminar (presentation at the annual meeting for the National Association of Free Will Baptists, Kansas City, Missouri, July 17-20, 2016), which itself is adapted from chapter five, “Same-sex Marriage and Christian Citizenship,” in Sexuality, Gender, and the Church: A Christian Response in the New Cultural Landscape (Nashville: Welch College Press, 2016), which readers can order by emailing firstname.lastname@example.org
“Get EnGAYged.”[i] Those were the words I saw pinned to a young man’s shirt on the day after Obergefell v. Hodges.[ii] This is the Supreme Court ruling that held that the Fourteenth Amendment to the U.S. Constitution grants same-sex couples the right to marriage, and that all states must recognize this right.
What followed was the declaration that “love wins” and a rainbow light display from the White House.[iii] Perhaps you had a similar experience. But homosexuality and same-sex marriage didn’t arise in 2015 with Obergefell. They’ve dominated the public discussion for well over a decade.
These cultural developments haven’t left the church, its members, or its ministries unaffected. Now, courts are jailing some who refuse to issue same-sex marriage licenses. Workers who decline to accommodate same-sex couples are found guilty of discrimination. Examples include Christian bakers, bed and breakfast establishments, florists, photographers, and wedding venues. Cities are denying church groups equal access to rent public properties and attempting to regulate wedding chapels.
Universities are declining to recognize Christian student groups with traditional religious values. Federal healthcare mandates are attempting to require corporations to cover contraceptives and drugs to induce abortions. One city mayor even terminated the services of a public servant who expressed religious views contrary to city policy. Another attempted to compel pastors to submit sermons that make reference to homosexuality or gender identity.
These developments aren’t over. We haven’t heard the final word. Our denomination, churches, and congregants will continue to be affected. Christians today are facing strong pressure to conform. As a result, many are asking, “What does this mean? What are the legal and religious liberty implications of Obergefell?”
In answering these questions, we’ll consider some social and legal developments. Then we’ll examine several important civic principles. These include religious liberty, separation of powers and federalism, the rule of law, and democracy and liberty.
“I’m just a church member. I don’t know anything about the law,” some may say to themselves. But I submit that all American Christians should know something about these principles. As we’ll see, they help us understand the society within which we serve.
Historically they’ve also helped protect the inherent, God-given liberties we possess—what the American founders referred to as “unalienable rights.” Regrettably, many of these principles and protections are being threatened, which we must work to curb. We live in a democratic republic, and we all can play an important role. But to do this, we must understand what we’re protecting.
How Did We Get Here?
For most of its history, American government has penalized homosexual behavior. However, after World War I, LGBT (lesbian, gay, bisexual, transgender) rights made a small step forward in the so-called Roaring Twenties.
By the 1960s, the LGBT movement was in full swing. In 1962, Illinois became the first state to decriminalize homosexuality. Prior to this, all fifty states had laws against it.
In 2003, Lawrence v. Texas decided that laws against same-sex sexual conduct are unconstitutional. This decision set the tone for the expansion of LGBT rights for the next decade as public awareness and sympathy continued to grow.
In 2011 and 2012, the Equal Employment Opportunity Commission (EEOC) held that Title VII of the 1964 Civil Rights Act also applies to LGBT people. Title VII outlaws discrimination on the basis of race, color, religion, sex, or national origin. Now that doesn’t say anything about LGBT rights or gender identity, does it?
Well, the EEOC determined that the “sex” component extends to LGBT people. Previously this had referred to women to protect them from gender discrimination.[iv] Now apparently it also refers to LGBT people.
With same-sex marriage, Massachusetts became the first state to recognize it in 2004. By June 2013, just nine years later, United States v. Windsor said that the Defense of Marriage Act (DOMA) was unconstitutional. Congress had passed DOMA in 1996, and President Bill Clinton had signed it. And it had defined marriage as a one-man, one-woman union.
Obergefell v. Hodges
Most recently, Obergefell v. Hodges has said that same-sex marriage is legal across the land.
The facts of the case are simple. The states of Michigan, Ohio, Kentucky, and Tennessee “define[d] marriage as a union between one man and one woman.”[v] A lawsuit was filed, saying that this was unconstitutional. And eventually it made its way to the Supreme Court.
Keep in mind that Americans had defined marriage this way for over 150 years. And no one had suggested it was unconstitutional.
The question they considered was whether the Fourteenth Amendment gives same-sex couples the fundamental right to marriage. And if so, do all states have to recognize this fundamental right? A 5-4 majority held “yes” to both questions.
Defining “marriage” as a one-man, one-woman union is, according to Obergefell, unconstitutional under the Fourteenth Amendment. Justice Kennedy wrote the majority opinion. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Antonin Scalia wrote four separate dissents.
Justice Kennedy wrote that the Constitution—specifically the Fourteenth Amendment—protects liberties that extend to certain personal choices central to individual dignity and autonomy. Which includes choices defining personal identity and beliefs. Which includes the right of same-sex couples to marry.[vi]
Now, the Fourteenth Amendment reads that no state shall “deprive any person of life, liberty, or property, without due process of law.” Do you hear anything about that in there?
All of this leads us to ask, “Where do we go from here?” We’ll consider that question in part II, as well as the topic of religious liberty.
[i] Portions of this series are adapted from “Supreme Decision?”, ONE Magazine, October-November 2015: 6–8; “Responding to Intolerance: From Life Transformation to World Transformation,” The Brink Magazine, Summer 2015, 38–42; and “Godliness and Government,” FUSION, December, January, February 2013–14: 66–69.
[ii] Accessible at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.
[iii] Molly Oshatz, writing for First Things, writes, “‘Love wins’ has become a catch phrase of the fight for gay marriage. Love wins, yes, but it’s agape that wins, not eros” (Molly Oshatz, “Agape Wins,” First Things, July 6, 2015; http://www.firstthings.com/web-exclusives/2015/07/agape-wins; accessed September 25, 2015; Internet).
[iv] See “Civil Rights Act (1964), Our Documents, http://www.ourdocuments.gov/ doc.php?flash=true&doc =97&page=transcript; accessed October 21, 2015; Internet. This legislation does contain a religious exemption in section 702, which provides, “This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.”
[v] Obergefell v. Hodges, 576 U.S ___ (2015), at 1; accessible at http://www.supremecourt.gov/opinions/14pdf/ 14-556_3204.pdf.
[vi] Obergefell, 576 U.S ___, at 2, 3.