Written by Don Byrd
As you probably are aware, the U.S. Supreme Court is set to hear oral arguments this week on the legal status of same-sex marriage in four cases known collectively as Obergefell v. Hodges. The question is whether principles of Due Process and Equal Protection, enshrined in the Fourteenth Amendment, require states to issue and recognize marriage licenses to same-sex couples. For supporters of same-sex marriage, the issue is one of fairness and equality; for opponents, it is a matter for state legislators and voters, not federal courts, to decide.
One thing we know for sure: religious liberty is not the issue before the Court in this case. BJC General Counsel Holly Hollman released a special report Monday to explain that in detail. When it comes to performing marriage ceremonies, religious liberty is well-protected. Clergy cannot be forced to conduct, nor can houses of worship be forced to host, marriage ceremonies they find objectionable. Don’t let anyone tell you otherwise.
The Baptist Joint Committee is dedicated solely to the issue of religious liberty and the separation of church and state. Accordingly, they do not take a position on other issues like the legal status of same-sex marriage. They have offered helpful columns in the past exploring the topic of marriage and religious liberty. In advance of the Court’s arguments Tuesday, I thought those columns might be worth revisiting to remind us of a few key points:
1. There is no one “religious freedom” response to the question of same-sex marriage before the Court. As Hollman wrote in 2009 in a column entitled “Marriage and religious freedom“:
[I]t is important to recognize that supporters of religious freedom (and of the BJC) are on different sides of the debate. The BJC is following the debate closely, with our eyes focused on defending and extending religious freedom for all. . . . We would all do well to remember this: the simple fact that a state’s marriage laws conflict with certain religious beliefs while conforming to others does not by itself threaten anyone’s religious liberty.
2. Church autonomy in choosing to perform or not perform wedding ceremonies is robustly protected and not in jeopardy as a result of this week’s cases. In 2012, the Supreme Court in Hosanna-Tabor unanimously upheld an application of the church autonomy doctrine, ruling that courts may not intervene in employment discrimination disputes between churches and their ministers (see the BJC’s Hosanna-Tabor page for more). Chief Justice John Roberts said it this way: “The church must be free to choose those who will guide it on its way.” While the facts in the same-sex marriage cases are different, the principle of church freedom to choose its way is strongly established and undermines any misguided prediction that clergy will be forced to conduct same-sex marriage ceremonies.
In a 2013 column entitled, “Religious liberty and same-sex marriage,” Hollman emphasized:
[T]he right of religious communities to define their beliefs and conduct their worship and marriage ceremonies in accord . . . is not endangered by legalizing civil marriage for same-sex couples. Indeed, no state that recognizes same-sex marriage has required churches to host, or clergy to officiate, same-sex weddings, nor would the First Amendment allow it.
3. The overlap between civil and religious marriage has complicated this debate, as clergy are used by the state to perform marriage ceremonies. In response, many ministers now refuse to sign civil marriage certificates, either to protest the legalization of same-sex marriage, or to protest a ban on same-sex marriage.
Hollman wrote about this in a 2014 column entitled “Changes in marriage laws renew questions about the role of the church“:
Through the years, and long before same-sex marriage became a common topic of political debates, I’ve heard Baptist pastors who served on the BJC Board or worked closely with us in some capacity question the role of pastors as agents of the state in marriage ceremonies. Many find ways to avoid or minimize that connection as they perform weddings; some routinely explain the different meanings of marriage during ceremonies.
…
The good news for religious liberty is that churches remain free to make the autonomous decision about whom to marry — without state interference. Likewise, there are always options for civil marriage that do not include a minister’s signature or religious ceremony. The separation is up to us.
Those three columns are fantastic starting points for thinking about same-sex marriage and religious liberty. While the cases the Supreme Court will hear this week do not turn on religious liberty issues, you can be sure that the BJC is following closely.
