Saturday, 27 June 2015

US Supreme Court - Same Sex Marriage and Religious Freedom

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 Continuing my analysis of the US Supreme Court decision in Obergefell v. Hodges I am going to look at how the decison and the dissenting judgments deal with the implications of the judgment so far as Religious Freedom is concerned

Under the 1st Amendment to the US Constitution the "free exercise" of religion is explicitly protected

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

The question of a possible conflict between Religious Rights and the newly discovered (invented !) "right" to same-sex marriage was touched on in the majority judgment at P27

"Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection 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. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. "

This reassurance is however given short shrift in the dissenting judgments


Roberts P27 

"Today’s decision,for example, 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. Amdt. 1. 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 samesex 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. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today"

Thomas P14 

"Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.....In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid.
Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution
requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty"

Alito P7 

"Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas"

So what are the consequences of the decision for Religous Freedom in the US since, as the dissenters have pointed out, the consequences are far greater than they would be if Same-Sex Marriage had become law through legislative chage rather than by becoming a, hitherto unseen, Constitutional "right".  Legislation can be fine tuned and amended in a way that an unwritten "right" cannot be.  The judgment creating the "right" to same-sex marriage sets up a conflict of "rights" namely the explicit protection of religious rights set out in the 1st Amendment as against the, fairly unspecified, "right" to same-sex marriage which was "discovered" by the 5 Judges who gave the Obergefell decision.  A conflict of rights is a recipe for years of expensive and acrimonious litigation because how can the Courts or legislatures protect the Constitutional rights of a Religious Organisation that actively disagrees with another Constitutional Right?


In Bob Jones University v. United States case 461 U.S. 574 (1983) the US Supreme Court decided that the Ist Amendment did not prevent the US Government removing the religious tax exemptions given to the religious Bob Jones University because the University prohibited Inter-racial dating.  It would be therefore be a relatively easy and lawful step for tax exemptions to be similarly removed from religions that did not endorse same-sex relationships; as Chief Justice Roberts in P27 of his dissent pointed out that this possibility has already been considered and accepted by the US Government.


A more sinister, but equally possible, secenario would be the passing of legislation seizing the property of Religious Organisations which disagree with same-sex marriage.  This could be legally justified on the basis that the teachings and practices of such religions opposed a "right" enshrined within the US Constitution.  


In the 19th Century when the Mormon Church practiced Polygamy the US Congress passed a series of increasingly draconian anti Mormon acts culminating in the 1887 Edmunds-Tucker Act which dissolved the MormonChurch and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this act was endorsed by the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States 136 U.S. 1 (1890). on the basis that the beliefs and practices of the Mormon Church were incompatible with US Law


Could the same thing happen to Religious Organisations which disagree with same-sex marriage ?  The legal precedents are there and certainly on the part of same-sex marriage advocates the will is there to attack and if possible destroy religion, in particular Christianity. Religions in the US are therefore facing a dangerous future where their freedom is far from guaranteed. 

3 comments:

Matthew Semrad said...

The argument is what constitutes an exercise of one's religion. One cannot simply allow any act to be considered an act of religion, or that protection becomes a license to break the laws. For example, if you consider your work in your accounting business a religious exercise, should you be allowed to avoid paying taxes on your business income?

And it certainly cannot be considered an exercise of religion to vote in ballot measures to limit the freedoms of others, or at least, we cannot give full pardon to such attitudes. If so, a state such as North Carolina could vote to make Christianity their official religion, in direct contradiction of the first amendment, and demand that their action be protected as religious expression. That is what is attempted by saying forbidding same-sex marriage is religious expression.

As for the Bob Jones case, you've relied on the wrong law. It wasn't the legality of interracial marriage that Bob Jones ran afoul of, it was the federal anti-discrimination laws forbidding discrimination against people based on their race. Currently, no federal law forbids discrimination on the basis on sexual orientation. Therefore, it would not be lawful or easy to remove tax-exempt status from universities which so discriminate at this time.

Lastly, I'm amused that you referenced the Edmunds-Tucker Act. Notice that the act enforced a morality on a church because that church practiced a method of marriage which differed from that of the larger religious authorities of the country at that time. So, a better comparison would be to say that the government might pass such an act to seize the lands and property of those churches who DO perform same-sex marriages, as they violate the morality of the dominant religious entitites. My sincere hope is that no such act would be passed today, and the fact that Scientology is given status as a protected religious entity, though it is almost universally derided as a scam and even dangerous, should give one faith that our government wouldn't so act today.

Neil Addison said...

Well Matthew you seem to be supporting what I, and the 4 Justices, say namely that for a Religious Organisation to refuse to perform Same-sex marriages cannot be defended under the 1st Amendment as a "religious expression" to use your words.

Re the Bob Jones analogy if I am wrong then I am in good company since both the Chief Justice of the United States and the Solicitor General of the United States agreed that a religious organisation that refused to perform same-sex marriages could lose its tax exemptions. The fact that the Bob Jones case related to Federal Legislation preventing Racial Discrimination is really an irrelevant distinction; indeed since Same-sex Marriage has now been recognised as a right under the Constitution rather than merely being a right based on Federal Legislation the IRS would be on stronger grounds than it was in the Bob Jones cases.

I disagree entirely with you relating to the background and status of the Edmund-Tucker Act. The case did not concern the forms of Marriage recognised by Religious Authorities but instead dealt with the structure of Marriage permitted in the Federal Territory of Utah under Feral Law and the argument that the Mormon Church was systematically defying that law, Your suggestion that Congress might pass a law "to seize the lands and property of those churches who DO perform same-sex marriages" is frankly legally preposterous since any such Churches would be be acting in accordance with a, now, guaranteed, Constitutional Right. By contrast for Congress to legislate to seize the assets of Churches which did NOT perform Same-sex Marriage would be much easier to justify under the Edmunds-Tucker precedent.

20 years ago Same-sex Marriage did not exist anywhere on the face of the Globe, now it is a Constitutional right in the US so it is difficult for you or I, or anyone else, to say that anything is impossible in the future.

legal service provider said...

Therefore, it would not be lawful or easy to remove tax-exempt status from universities which so discriminate at this time.