Tag Archives: Religious Liberty

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.

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[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.