On April 28, 2015, the U.S. Supreme Court heard oral arguments on the matter of Obergefell v. Hodges. In a revealing moment of candor, a confession was made about the ramifications of a resulting decision that deems same-sex marriages constitutional in all 50 states. Justice Samuel Alito posed a question to U.S. solicitor general Donald Verrilli about faith-based organizations’ tax-exempt status. Verrilli was arguing for the federal government for same-sex marriage. “In the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage. . . . So would the same apply to a university or a college if it opposed same-sex marriage?” asked Justice Alito. Mr. Verrilli responded, “You know, I—I don’t think I can answer that question without knowing more specifics, but it is certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”
Mr. Verrilli’s response, “It is going to be an issue,” certainly caught the attention of faith-based institutions, raising fears that have been growing for some time. It is possible that religious liberty will be gravely challenged if same-sex individuals can legally marry. Will faith practice that opposes such marriages be overridden if same-sex marriage becomes the law of the land? In fact, the implications were immediately apparent when Mr. Verrilli’s colleague, Ms. Mary L. Bonauto, was asked if clergy would be required to wed a same-sex couple. Her response was no, as it is something protected by the First Amendment. That answer left Justice Antonin Scalia less than confident. He opined that “if it’s a constitutional requirement, I don’t see how you can [make exceptions about who is entitled to perform marriages or not].” Justice Scalia has since died, and his position remains vacant—but not the question.
Nearly a decade earlier, in what seems prophetic today, the Becket Fund held a symposium on the impact to religious liberty if same-sex marriage were deemed constitutional. Several legal scholars weighed in with profound insight. Marc Stern stated, “Same-sex marriage would work a sea change in American law. That change will reverberate across the legal and religious landscape in ways that are today unpredictable.” He closed his essay by concluding, in part, that “I am not optimistic that, under current law, much can be done to ameliorate the impact on religious dissenters.”
At that same Becket Fund gathering, Jonathan Turley said, “The debate over same-sex marriage has become for the twenty-first century what the abortion debate was for the twentieth century: a single, defining issue that divides the country in a zero-sum political battle.” And that battle was on display in legislatures in several of the Southern states this session. From legislators seeking to include sexual orientation and gender identity into their state nondiscrimination laws, to legislators creating legislation to protect private business owners that have objections to same-sex marriage, legal conflict was sharp and vigorously argued.
In Georgia, House Bill 757 was hotly debated at the legislature and in public circles. It was a bill that started out simply assuring that clergy and church property would not be forced to perform or hold same-sex weddings. As the session drew on, other bills were included in it. These were bills that stated clearly that businesses owned and operated by individuals with beliefs against same-sex marriage were protected in withholding their services. Other bills were religious freedom reformation acts. The now-muddled bill went through a series of committees and compromises before it was voted and sent to the governor’s desk.
Gone were the guarantees of protections for private business owners. What remained were the protections for clergy and faith-based organizations as well as the Religious Freedom Restoration Act. That pared-down bill was very unacceptable to such major businesses as Delta, Home Depot, and the state’s strong movie industry, to name a few parties. Though clergy and faith-based operations are already strongly protected in American law, and the Religious Freedom Restoration Act was mirroring the federal legislation, the governor still vetoed it on the grounds that discrimination toward gays might follow.
Georgia’s HB 757 was probably doomed after attempts over several years to pass a religious freedom restoration act that had an attachment of protection specifically for parental rights based upon religion. It was never a popular bill among big business, the gay lobby, or even some religious groups. Big businesses feared employees holding religion convictions could override business needs if the bill became law. Gay groups felt it would allow open season on gays in the workplace by employees of faith, creating interpersonal unrest over their objections to sexual practices they deemed sinful. Religious groups felt the bill would create too high a standard for government to meet in order to carry out its compelling interests. That bad blood spilled over into this session, and though the RFRA was a “clean” bill (no special protections over parental rights), there was no way the opposing groups could trust its alleged benign purposes in religious protections.
The state of Mississippi went even further. House Bill 1523, entitled “Protecting Freedom of Conscience from Government Discrimination Act,” is a sweeping piece of legislation that goes far beyond Georgia’s protections. Along with the clergy and faith-based properties protections a broad range of other protections are assured. Adoption and foster care agencies that decline placing children in same-sex-couple homes cannot be acted against by the state. Private business owners in the area of floral arrangements, photography, videography, disc jockey, wedding planning, printing, and publishing are protected in denying services. Even dressmakers, cakemakers, car rental services, limousine services, jewelry sales, or any business accommodation that serves the public for weddings can refuse service. Companies are protected from establishing sex-specific standards or policies concerning an employee, student dress, grooming along with access to restrooms, spas, baths, showers, and dressing and locker rooms.
The medical and mental health professions can withhold non-life-threatening treatment on the basis of religious objections. State employees can lawfully speak or engage in expressive conduct consistent with their sincerely held religious belief or moral conviction on and off work. Persons acting in behalf of state government, such as clerks, registers of deeds, judges, magistrates, and justices of the peace can recuse themselves from duties involving same-sex weddings. Basically, any person who holds religious objections to same-sex marriages could come under the protections afforded in the bill.
Where this all takes us is problematic. But greater legal conflict and the impression of injustice and prejudice are certain.
Article Author: Kevin James
Mr James's constituency encompasses Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. His primary responsibility is to provide assistance to church members who seek Sabbath accommodation in the workplace, and in that function has led numerous individuals through the Equal Employment Opportunity Commission (EEOC) claims process. Mr. James is an ordained minister, and prior to his work with the Southern Union, served as local church pastor for over 20 years.