By General Counsel K. Hollyn Hollman
Obergefell v. Hodges, the same-sex marriage case being argued before the U.S. Supreme Court this week, is not a First Amendment case. Its potential impact, however, has increased conversations about religious liberty, particularly the religious liberty implications of same-sex marriage, which is now legally recognized in 36 states and the District of Columbia. Religious voices have been prominent on both sides of the debate because of the significance of marriage in religious traditions. These voices, however, are only a small part of the legal debate which centers on whether the Fourteenth Amendment requires states to issue marriage licenses and/or recognize all lawfully-issued marriage licenses from out-of-state. Of the more than 140 amicus briefs filed before the U.S. Supreme Court, fewer than 15 percent were filed by religious groups, and few of those included religious liberty arguments.
While these briefs address only the edges of the primary legal arguments, they are still worth noticing. They reflect the broad diversity of religious thought in America about marriage as a religious and civil institution. The briefs share a common concern with the political and cultural divisions in our society, divisions that were magnified by Indiana’s recent legislative session.
The Obergefell briefs filed on behalf of religious organizations and individuals raise various religious concerns within the same-sex marriage debate. Some religious groups filed briefs supporting the petitioners, asking the Court to strike the state bans on same-sex marriage. They assert that, because of their religious belief in full equality before God, the state burdens their religious liberty when it treats marriages differently. Numerous religious groups also filed briefs supporting the respondents, asking the Court to uphold the state same-sex marriage bans. These groups assert that their religious beliefs inform their definition of marriage and that judicial voidance of the state bans will generate religious liberty conflicts.
Religious voices on both sides of this debate are concerned about what comes after Obergefell. Despite common rhetoric, I am unaware of any credible public voice seeking marriage equality who is trying to force objecting clergy or houses of worship to perform or host a same-sex marriage ceremony. Those who retain a traditional definition of marriage want explicit exemptions or at least the potential of a “RFRA-like” claim to protect their actions based upon their religious beliefs about marriage. By the same token, supporters of same-sex marriage fear that if the Court’s decision makes room for religious exemptions, these exemptions will expand far beyond individual clergy and houses of worship to legalized discrimination in every area of the public square.
In anticipation of a decision striking marriage bans as unconstitutional, several state legislatures are already considering bills designed to grant religious exemptions in a multitude of contexts. Some purport to protect churches and pastors but are written in terms that could extend much farther. Others would permit government employees to opt-out of issuing marriage licenses or performing civil ceremonies based on religious convictions. None are without controversy as those who support same-sex marriage and those who oppose it seem to have difficulty finding common ground when it comes to legal protections. The outcome of these efforts will depend not only on the status of same-sex marriage after the Supreme Court’s decision in Obergefell, but on how each state decides to treat the competing liberty interests of same-sex couples and religious objectors.
Related blog post: Three things to know about religious liberty and the same-sex marriage cases
