Tag Archives: Constitution

Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part III of V)

by Matthew Steven Bracey

In part II, having considered how we’ve gotten to the state in which we find ourselves in part I, we began asking where we go from here, and considering religious liberty in particular. We’ll continue that with this post.

Religious Liberty Threatened

Chai Feldblum said, “There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win.”[1]

Many Christian voices have sounded the alarm. Robert George writes, “In the name of ‘marriage equality’ and ‘non-discrimination,’ liberty—especially religious liberty and the liberty of conscience—and genuine equality are undermined.”[2] Russell Moore remarks, “Religious liberty is genuinely imperiled, perhaps more than at any time since the revolutionary era.”[3]

In his dissent in Obergefell, Chief Justice Roberts wrote, “Today’s decision creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”[4]

Make no mistake, friends, religious liberty is in trouble. And it’s slowly being taken away. What will this mean for our children and our grandchildren if we don’t do something?

Religious liberty isn’t simply the right to teach our religion or to hold it in the privacy of our homes. It includes the freedom to exercise our religion in society, in business, and so forth. “Congress shall make no law . . . prohibiting the free exercise” of religion.

However, a Supreme Court that requires states to recognize same-sex marriage results in a conflict for people who want to exercise their First Amendment religious liberty rights.

Justice Thomas also talked about this in his dissent. He says that the majority’s opinion “makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.”

He explains that religious liberty is

about more than just the protection for ‘religious organizations and persons . . . as they seek to teach the principles [of their faith].’ Religious liberty is about freedom of action in . . . religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.[5]

Well, this is the same thing Jefferson said. When Justice Thomas echoes Jefferson, and yet finds himself in the dissent, we have a problem.

If the chances of incurring civil limitations or restrictions increase as a result of practicing your religious beliefs, the less religious liberty you have. And the more religious liberty is being threatened and destroyed.

This was illustrated when, following Obergefell, Kim Davis, a county clerk in Kentucky, was jailed for defying a court order when she refused to issue same-sex marriage licenses, which she said violated her religious beliefs.

We’re seeing similar conflicts on related issues on the state and local levels. What happens if you or someone you know is a public servant and refuses to issue a same-sex marriage license on account of his or her conscience?

What if you or someone you know is a baker, bed and breakfast owner, florist, photographer, or a wedding venue owner and declines to accommodate same-sex couples?

What if you or someone you know is a church planter, and the city refuses to grant you equal access to rent public properties? What if it attempts to regulate your policies regarding marriage or compel you to submit sermons that make reference to homosexuality or gender identity?

What if you or someone you know is in upper management, and the government attempts to require your company to cover contraceptives and drugs to induce abortions? These possibilities, and many like them, aren’t far-fetched. They’re affecting us, our families, our congregations, and our cities.

Defending Religious Liberty

What, then, can we do? We reeducate ourselves about religious liberty. We learn how religious liberty is rooted in Christianity and good for societies.

Moore reminds us that it’s a gospel and church issue: “Religious liberty is as much about children’s Sunday school as it is about the Supreme Court—indeed more so. If we’re going to claim a future for liberty, we must remember why we have it: for the gospel and for the advance of the mission.”[6]

We observe how the voices of the past can help us in this endeavor.[7] We see the good sense in it, and we commit ourselves to it. “Just expressing our opinion is[n’t] enough. We are called to take a stand.” [8] We don’t do any of this by ourselves, but with people in community. This can take place in all kinds of situations.

Perhaps we discuss religious liberty with our families over the dinner table. Perhaps we do it with our churches in Sunday school or a small group. Perhaps we do it in our workplaces around the proverbial water cooler or over lunch.

Perhaps we defend religious liberty by voting on laws and candidates that best honor it. I hardly think that a likely presidential nominee who says that Obergefell was a good start, but that we’ve a long way to go, cares much your religious liberty or mine.

Perhaps we sign petitions or manifestos, write letters to local newspapers and representatives, protest peacefully, volunteer or work for appropriate candidates, or even run for a political office.

Whatever we do, we must do something.

In part IV, we’ll pick up with the topics of the separation of powers, federalism, and the rule of law.


[1] Maggie Gallagher, “Banned in Boston: The Coming Conflict Between Same-sex Marriage and Religious Liberty,The Weekly Standard, May 15, 2006; http://www.weeklystandard.com/ Content/Public/Articles /000/000/012/191kgwgh.asp?page=3; accessed October 21, 2015; Internet.

[2] Robert P. George, “Marriage, Religious Liberty, and the ‘Grand Bargain,’” Public Discourse, July 19, 2012; http://www.thepublicdiscourse.com/2012/07/5884/; accessed October 21, 2015; Internet.

[3] Moore, 150.

[4] Obergefell, 576 U.S ___ (Roberts, dissenting), at 27.

[5] Id. (Thomas, dissenting), at 15–16; ellipses in original.

[6] Moore, 153.

[7] Some of these include Thomas Helwys (c. 1575–c. 1616), John Murton (1585–1626), Thomas Hooker (1586–1647), Roger Williams (c. 1603–1683), William Penn (1644–1718), Thomas Jefferson (1743–1826), and James Madison (1751–1836).

[8] Timothy George, “Let Religious Freedom Ring: Why It’s One of the Most Pressing Issues Today,” First Things, June 30, 2014; http://www.firstthings.com/web-exclusives/2014/06/let-religious-freedom-ring; accessed October 21, 2015; Internet.

Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part II of V)

by Matthew Steven Bracey

Part I of this five-part series adapted from Matthew Bracey’s Convention presentation at the Theological Trends seminar can be accessed here

In part I, we introduced some of the legal and religious liberty implications facing Christians today. In particular we considered how we’ve gotten to the state in which we find ourselves, both social and legal developments. In this post, we’ll consider what we do in response, and we’ll begin looking at religious liberty.

Where Do We Go From Here?

This conversation about how society to treat LGBT peoples is occurring everywhere. It takes place in all three branches of both federal and state governments. It shows up in laws and policies.

We find it at our workplaces, around the water cooler, and in our churches. We hear it from airlines, businesses, and sports teams.[1] We see it in movies and television shows, and we read about it in newspapers and books—for adults and children alike. We even learn about it in public schools, all the way down to kindergarten and preschool.

We must face this issue squarely and equip our churches and congregants in biblical discipleship. We need to see how the civic and religious principles that our civilization is built on—the ones we’re getting ready to discuss—are being threatened. As we’ll see, many of them are informed specifically by Christian teaching.

 We need to reeducate ourselves in them so that we begin to think about we can stop this. How do we do this? We can begin by informing ourselves about the topics discussed in this presentation.

This could take place by talking with others or by listening to a podcast. We can read books with a small group or teach through them to a class in church. (Several examples are listed at the end of this chapter.)

We can learn how to work them into our points of illustration and application as we teach and preach God’s Word. However, this requires us to know how the Bible’s teaching shapes these legal principles and what they are.

Together we can build a church culture that knows about these principles, takes them seriously, and can see how they fit within a Christian worldview.

Religious Liberty

As Christian leaders, we should work to reclaim a confidence in God-given, Constitution-affirmed religious liberty. We should know how to defend it when it’s threatened—and it is. This means we should know what the Bible, the Baptist tradition, and American heritage say about religious liberty.

Defining Religious Liberty Theologically

Religious liberty says the inherent dignity of all people. This means that everyone has a God-given right to practice his or her religion without fear or coercion. It finds its basis in the nature of God, the image of God in humankind, and the incarnation of Jesus Christ.

God created man in His image (Genesis 1:26–27). And He created them with a religious conscience and the power of choice (Joshua 24:15; 1 Corinthians 10:27–30; 1 Timothy 1:5). This quality within men and women reflects something about God’s very nature.

This was made evident in the incarnation of Jesus Christ, the very image of God (Colossians 1:15; Hebrews 1:3). Jesus didn’t coerce or force His teaching on people. He taught, asked questions, and respected people’s choice of conscience. Free choice. Free will.

Paul instructed that we walk “by the manifestation of truth commending ourselves to every man’s conscience in the sight of God” (2 Corinthians 4:2).

As a result, we should defend the right to religious liberty of both Christians and non-Christians alike. This is what the Bible teaches. And it’s what Baptists have taught.

Thomas Helwys founded the first Baptist church on English soil in the early 1600s. America’s first Free Will Baptists were some of Helwys’s direct spiritual descendants who had migrated to the American colonies in the late 1600s

Well, Helwys said that rulers and states don’t have authority over the consciences of their subjects or citizens:

Men’s religion to God is between God and themselves. The king will not answer for it. Neither may the king be judged between God and man. Let them be heretics, Turks, Jews, or whatsoever, it does[n’t] [concern] earthly power to punish them in the least measure. This is made evident to our lord the king by scriptures.[2]

We hear this same point from Christians today. Eric Metaxas writes, “For good or for ill, the Christian faith is the one faith, more than any other, that encourages intellectual and religious freedom. True Christians throughout history have [always protected] the religious liberty, not just of Christians, but of non-Christians too.”[3]

Or Russell Moore says, “The gospel goes forward not through manipulation or coercion, but through the open and persuasive proclamation of the gospel as a conscience to a conscience (2 Cor. 4:2).”[4]

This means that governments shouldn’t coerce religious belief against someone’s conscience.

It also means (as we’ll note below) that governments shouldn’t require something of us that would cause us to violate our religious beliefs. Whether in the home, the workplace, or the marketplace.

In either case, the government has offended religious liberty.

Defining Religious Liberty Legally

America’s founders also talked about religious liberty. For example, Thomas Jefferson wrote that all people “are endowed by their Creator with certain unalienable rights.”[5] Among these is religious liberty. Or what he called religious freedom. Which he described as the “natural rights of mankind.”[6]

He said, “Almighty God ha[s] created the mind free.” No one should “suffer on account of his religious opinions or belief, but that all men shall be free to profess, and . . . maintain, their opinions in matters of Religion.” [7]

(Mmm. Increasingly are we more or less free to exercise what the Bible teaches without suffering for it?)

Jefferson also said that our religious beliefs should not “affect [our] civil capacities,” positively or negatively.[8] This means the government shouldn’t reward or punish us for how we let Christianity inform our family lives and business practices and so forth.

(Mmm. Can you think of anyone whose businesses or livelihood is being affected negatively because of their Christian beliefs? I listed many examples in the introduction of part I.)

And of course we have the First Amendment: “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.”[9] Now, sometimes people get confused about what the Establishment Clause is supposed to mean.

It doesn’t mean that your religion can’t have any bearing on the law or society or culture. All it means is the institutional separation of church and state. This just means that America shouldn’t have an official state church, like the Church of England or the Russian Orthodox Church.

But the institutional separation of church and state doesn’t mean the separation of morals from the public square or religion from public life. That’s what the Free Exercise Clause is all about.

Russell Moore explains that the separation of church and state “does[n’t] mean the division of religious people from citizenship. Citizens come to decision-making, and culture-makers come to culture-making, with their consciences formed somewhere and by something.”[10]

Throughout American history, citizens have allowed their religious convictions to inform their views of law and policy. And so can we! “There’s “no conflict between loving God and loving one’s country, between one’s faith and one’s public service.”[11] By all means, let your religious opinions inform how you think about life and the law and so forth.

Still, some ask where exercising religious liberty ends and imposing one’s religious viewpoints begins. That’s a good question, but it misunderstands religious liberty. As well as the nature of law and policymaking.

Religious liberty gives people the freedom to hold and exercise their religious beliefs in society. It’s not the imposition of one person’s views on another.

Besides, all laws and policies reflect some value of one sort or another. The question remains as to whether that something is a good or bad thing, and whether it honors religious liberty for all.

So religious liberty is about more than the freedom of belief in the privacy of your home. It allows those beliefs to follow you in your public life. It’s “the right to live out the teachings of your faith in every single aspect of your life.”[12]

And yet, despite the Biblical and constitutional importance that religious liberty has had, and that it should have for us, it’s being threatened.

In part III, we’ll pick up with the topic of religious liberty, considering how it’s being threatened and what we can do about it.


[1] For example, the following companies are just some of those that praised the Obergefell ruling: American Airlines, AT&T, Cheerios, Coca-Cola, Delta, Jell-O, Kellogg’s, Macy’s, Mastercard, Netflix, Old Navy and Gap, Pepsi, Sears, Starbucks, Target, Tide, Visa, Whole Foods, and YouTube.

[2] Thomas Helwys, A Short Declaration of the Mystery of Iniquity; in The Life and Writings of Thomas Helwys, ed. Joe Early, Jr. (Macon: Mercer University Press, 2009), 209.

[3] Acton Institute for the Study of Religion and Liberty, “Defending Religious Liberty: An Interview with Eric Metaxas”;http://www.acton.org/pub/religion-liberty/volume-22-number-2/defending-religious-liberty-interview-eric-metaxas; accessed October 21, 2015; Internet.

[4] Russell D. Moore, Onward: Engaging the Culture without Losing the Gospel (Nashville: B&H, 2015), 145.

[5] Declaration of Independence (U.S. 1776); http://www.archives.gov/exhibits/charters/declaration_ transcript.html; accessed January 23, 2016; Internet.

[6] Ibid.

[7] Thomas Jefferson, “Virginia Act for Establishing Religious Freedom,” January 16, 1786; http://www. heritage.org/initiatives/first-principles/primary-sources/virginia-act-establishing-religious-freedom; accessed October 21, 2015; Internet.

[8] Ibid.

[9] U.S. Const., amend. 1.

[10] Moore, 142.

[11] Paul Scalia, “Transcript: Rev. Paul Scalia’s Eulogy for His Father, Justice Antonin Scalia,” USA Today, February 20, 2016; http://www.usatoday.com/story/news/politics/2016/02/20/ transcript-rev-paul-scalias-eulogy-his-father-justice-antonin-scalia/80667122/; accessed April 5, 2016; Internet.

[12] Marco Rubio, CPAC2016, National Harbor, MD, March 2–5, 2016.