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Ruling in �avor of Obergefell, the Supreme Court decided that s�ates must issue a marriage license between people of the same sex, legalizing same-sex marriage in all 50 s�ates. In this week’s conversation, scholars discuss the implications of this decision for religious freedom and

Protecting Same-Sex Families and Religious Dissenters A�er Obergefell

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THE RFI BLOG

CORNERSTONE FORUM

SEP. 14 , 2022

Cornerstone

Forum:

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and Regional

Stability

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Chileans Reject

a Radical

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Salman

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the Future of

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Freedom Can’t

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Abortion

SEP. 09 , 2022

Egypt’s

Burning

Churches

SEP. 09 , 2022

explore the wider role of religion in American public life.

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By: Thomas C. Berg

The Evolution

of Individual

Rights and

Religious

Freedom

Following the

Arab Spring

Movement in

Tunisia

SEP. 01 , 2022

Iraq’s Future

Depends on

Achieving

Religious

Freedom in

Mosul Today

AUG. 30 , 2022

Forced

Conversions

Continue to

Plague Girls in

Pakistan’s

Minority

Communities

JUL. 29 , 2022

Five Promising

Steps Forward

for Religious

Freedom:

Re�ections on

Recommendations

O�ered at the

2022 IRF

Summit

JUL. 08 , 2022

Today’s Fight

for Religious

Freedom

Obergefell v. Hodges, declaring a constitutional right to same-sex civil

marriage, is a historic vindication of the rights of same-sex couples and the

welfare of their children. It also leaves open many questions whether the

rights of religious objectors will receive meaningful protection too. Justice

Kennedy’s majority opinion correctly held that the challenged state laws

denied same-sex couples their fundamental right to civil marriage under the

Due Process Clause and denied them equal protection of the laws in access

to that right. Same-sex couples �t within the most accurate description of

today’s institution of civil marriage: a committed mutual relationship of

multi-faceted intimacy (emotional, domestic, and physical), often but not

always directed to raising children. And the reasons given for excluding

same-sex couples did not come close to justifying the burdens from that

exclusion.

Now the question shifts to how far courts and legislatures will protect the

religious liberty of dissenters, from the wedding photographer to the

Catholic adoption agency to (further in the future) the federal tax-exempt

status of religious organizations that discriminate against same-sex couples.

Such disputes predated gay-marriage recognition, but the Court’s

declaration of a constitutional right will surely intensify the pressure on

organizations and individuals that continue to maintain marriage is only a

male-female union.

We can and should protect both same-sex couples and religious dissenters.

Indeed, as Douglas Laycock, others, and I argued in an amicus brief in

Obergefell, the basic principles that support religious liberty—the right to live

one’s life with integrity, consistent with a fundamental element of one’s

identity—also support the right of same-sex couples to marry.

Religious liberty questions were not directly before the Court, so

unsurprisingly it said relatively little about them. What it did say was

incomplete and inadequate but should not be taken as the last word.

The majority gave assurances that religious organizations and persons “may

continue to advocate with utmost, sincere conviction” that same-sex

marriage is wrong, and that they will receive “proper protection as they seek

to teach the principles” of their faith. This suggests strong protection for

religious speech and actions tied to speech. For example, a religious

organization may maintain standards of sexual conduct for its leaders,

under the “ministerial exception” validated in Hosanna-Tabor v. EEOC, and for

other employees (for example, certain schoolteachers) when their conduct

may undermine the group’s message, under the right of “expressive

association.”

But the opinion makes no mention of the constitutional right to

exercise religion: to follow religious conscience in cases not directly involving

speech, for example, an evangelical college refusing to extend married-

student housing to same-sex couples. Religion involves far more than belief

or expression, and if an organization cannot act according to its principles, it

will soon lose the ability to express and maintain them. Proponents of same-

sex marriage have correctly argued that a life of integrity encompasses

public conduct (marrying one’s partner); religious dissenters have an

analogous interest.

Religious conduct is protected by the Free Exercise Clause (especially

religious organizations’ “internal” decisions under Hosanna-Tabor), the

Religious Freedom Restoration Act (limiting federal laws), state constitutional

provisions and religious freedom statutes, and speci�c statutory

exemptions. These rights, of course, have limits, as is being learned both by

government clerks who object to issuing marriage licenses and by bakers

who object to serving same-sex weddings. But free exercise should not be

ignored, and the majority’s omission of it from the brief religious-freedom

passage should create no inference that it’s unimportant.

Religious liberty may also be a�ected indirectly by the reasoning

Obergefell used to support marriage rights. The majority said the state’s

denial of marriage not only burdens a fundamental right but also demeans

and disparages gays and lesbians and their children. That bodes ill for

religious freedom protections if it means the traditional opposite-sex view of

marriage is per se demeaning and disparaging. The majority elsewhere

expressed respect for the traditional view, saying that it often re�ects

“decent and honorable religious or philosophical premises.” But those two

passages sit uneasily together.

To resolve the tension requires distinguishing the state from the objector.

It’s one thing for a state to deny marriage rights, imposing wide-ranging

harms on gay and lesbian families, where the public reasons advanced for

the denial have proven manifestly insu�cient. It’s another for a traditionalist

religious organization to seek to follow its principles by avoiding participating

in or directly facilitating, in its own activities, a marriage inconsistent with

those beliefs. Obergefell’s point is not that the traditionalist view is

demeaning in itself (how then could it re�ect “decent and honorable”

premises?). The point is that imposing signi�cant disabilities on the basis of

the traditional view, without good reasons of state policy, is demeaning in

that it gives no consideration to the lives of same-sex

families. Obergefell says it’s the state’s action that demeans, but it could have

made this distinction more clearly.

As states address these con�icts, many will tend to devalue the minority

within their boundaries. Blue states may con�ne protections for religious

organizations only to the house of worship and the clergy, ironically ignoring

the progressive a�rmation that service activities lie at the core of religious

exercise. State religious freedom provisions, constitutional and statutory, will

play a role, with free expression principles, in allowing religious

organizations necessary space to follow their beliefs.

In red states, one danger is that exemptions of religious traditionalists will go

too far, like the failed 2014 Kansas bill that would have allowed both county

employees and large for-pro�t businesses to refuse to serve same-sex

weddings with little regard for the hardship on the couples. Today, threats of

economic boycotts may deter red states from such unbalanced legislation.

But they can maintain insensitivity to gay rights by simply declining to pass

antidiscrimination laws in the �rst place. Here religious exemptions become

relevant again. Some of the 30 or so states that do not protect LGBT people

against employment discrimination might be willing to do so in the coming

years, but that will be far less likely if they cannot include meaningful

accommodations for religious organizations with traditionalist sexual ethics.

Religious exemptions remain an important device, among others, for

protecting both sides in this bitter debate.

Thomas Berg is the James L. Oberstar Professor of Law and Public Policy at the

University of St. Thomas and co-director of the university’s Terrence J. Murphy

Institute for Catholic Thought, Law, and Public Policy.

This piece was originally authored on July 2, 2015 for the Religious Freedom

Project at Georgetown’s Berkley Center for Religion, Peace, and World A�airs.

Law marriage equality Obergefell v. Hodges Religious Exemptions

Religious Freedom Supreme Court