26 June 2015
Religion and Obergefell et al. v. Hodges
Today's historic Supreme Court decision has thus far received an understandably mixed reception. I have been troubled by those, including dissenting justices, suggesting that religious institutions are now under threat by the decision. All of this in spite of the fact that the decision itself and Justice Roberts' majority opinion carefully protects religion under the first amendment. So let's talk about the rights of religious institutions and what this decision could mean for us as a society.
So, regarding marriage, what rights do religious institutions have? After the civil rights struggle of the mid-twentieth century, churches have to marry people of other races and interracial couples, do they not? And if they can't discriminate based on race, they surely can't discriminate based on religion! So, up to this point, all religious officials have had to marry all opposite-sex couples that have come seeking to be married, correct? WRONG!
This is part of the free exercise clause of the United States Constitution. The government may not inhibit the free exercise of religion. If your religion is anti-Semitic, the government cannot take away your 501(c)3 status. If your religion is overtly racist, the government cannot take away your 501(c)3 status. The government cannot compel a religious institution to hire a female official, or a black official, or a LGBTQ official. The government cannot revoke tax exempt status if the institution has unpopular beliefs. However, like one of my history teachers used to say, my right to swing my fist ends where your nose begins. Religious institutions may not commit crimes, such as murder, larceny, or assault, to name a few.
Churches, etc., are allowed to refuse to marry people. Priests have the right to perform weddings only between two Catholics, if they so desire. Some officials require couples to complete marriage counseling provided by the religious institution to their satisfaction before performing a wedding. Some officials may refuse to marry people who cohabitated prior to marriage, or who are not in good standing with the institution. In 2000, a southern Ohio minister refused to allow an interracial wedding to take place in his church building, and was allowed to do so (http://abcnews.go.com/US/story?id=96577). Just last year, a preacher in Tennessee gave a sermon in which he disparaged (to put it lightly) interracial marriages, and his church has not seen any retaliation from the government that I am aware of (http://www.johnsoncitypress.com/article/114827/video-on-biracial-marriage-goes-viral).
By the way, there was a case where the United Church of Christ sued the state of North Carolina, claiming that their ban on same-sex marriage infringed upon UCC's right to free exercise of religion under the first amendment, and won. The free exercise clause works both ways.
While I have not read the entire decision at this point (it's 103 pages and just came out this morning) I have given it a glance. It says that religious institutions are allowed to follow their teachings and convictions. The language used in the decision supports the present interpretation of the first amendment, so we will assume that still stands. If Loving v. Virginia (the unanimous Supreme Court decision ending state bans on interracial marriages that the Supreme Court had previously ruled to be constitutional) did not force churches to perform interracial marriages, I hardly think that Obergefell et al. v. Hodges will force them to perform same-sex marriages. There is simply no precedent for such an action.
If religions are not forced to accept same-sex marriage, then what does this ruling actually do? What it does is compels the government to issue same-sex marriage license, and thus compels judges who perform legal marriages to sign them as part of their duty. It protects legal marriage under the fourteenth amendment in the same way that Loving v. Virginia protected interracial marriages (Loving v. Virginia is even cited in the decision).
In short, this decision allows same sex couples to marry legally, but does not compel religious institutions to perform such marriages, and does not prohibit them from speaking out against such unions.
EDIT: Let me also be very clear in stating that I very much wish to see various religious groups begin to allow same-sex marriages of their own volition and I do not condone discrimination inspired by religion as cited above. If you are going to Mennonite Convention 2015, I encourage you to check out Pink Menno's hospitality room and the events that Pink Menno will be hosting.