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Chris June 28, 2015

The Supreme Court issued its long-awaited decision in Obergefell v. Hodges, which asserted a nationwide right for same-sex marriage. We all knew this was coming. Almost every lower court (this case was the one that didn’t) had ruled in favor of same-sex marriage in the recent years and the Court’s decisions in the Defense of Marriage Act and Proposition 8 cases set the groundwork for Obergefell. It just became a matter of when. Both sides had already been planning their next moves when the decision was announced on Friday. Opponents of marriage equality were ready to criticize the decision and express new fears about how it would destroy us all. I read the decision and will address some of those fears.

  • Same-sex marriage, while now legal in the entire country, is not required. People do not have to enter into same-sex marriages. They do not have to marry at all. Marriage between heterosexuals is still legal and also optional. No marriage rights were eliminated by this decision. No marriages were invalidated either.

  • This decision does not require churches to perform same-sex marriages. We’re going to be hearing a lot about “religious liberty” in the coming months and years as opponents of same-sex marriage whine and grasp at straws. It is extremely important to note that there are two types of marriage: civil marriage and religious marriage. The government defines civil marriage and recognizes marriages legally for various reasons. People and churches often see marriage as a ceremony or sacrament and have a religious definition for it. These are often intertwined: people marry in a church but also in accordance with legal requirements and with a government-issued license. The Obergefell decision only dealt with legal marriages. This makes sense because the 14th amendment binds governments and their officials. The decision does not require churches to do anything different. In fact, the majority decision includes this passage

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

That really should be the end of it. Yet it won’t be.

  • While this decision doesn’t require churches to perform same-sex marriages, it is unlikely that the Court is on a slippery slope to a later decision that will do that. The Roberts Court has been very protective of religious rights. I think in a way that has actually decreased the freedom from religion. Recall that last year the Court declared in the Hobby Lobby case that closely-held corporations have religious beliefs (absolute BS but it is the law now) and also, in Town of Greece v. Galloway, that towns and cities can open meetings with prayers. Whether and how churches perform marriages is a question of theology–of their religious beliefs. The Court will not tell churches what their beliefs must be. That would obviously run against First Amendment law.

  • Churches also shouldn’t worry about their tax-exempt status. I heard this fear almost immediately. It’s a convenient way of turning the tables. It also isn’t very strong. The idea is that not allowing gays to marry in the church constitutes discrimination and the IRS and local authorities could pull churches’ tax-exempt status (just as Bob Jones University lost its tax-exempt status when it prohibited interracial dating). Churches will likely avoid this problem on First Amendment grounds. They actually have been doing so already. Churches already have great discretion in their practices, many of which can be called discriminatory. Consider that churches by definition discriminate on the basis of religion: the Roman Catholic church for instance does not administer the Eucharist to non-Catholics (or even those Catholics who are ineligible to receive it). The Catholic church has additional requirements, aside from gender and sexual orientation, that would violate equal protection if a state had them, such as not allowing un-annulled divorcees from marrying. Here’s another good example: women cannot become ordained as bishops, priests or deacons (Holy Orders is a sacrament, like matrimony). It is unlikely that a woman would prevail in suing to become a priest. It is also unlikely that the IRS exemption would be revoked for that reason, and this has been going on or a while. (The reason I used the Catholic church for these examples is that it is the religion I know the most about; these are not swipes at Catholicism.) I actually support churches’ rights to these decisions because I support individuals’ rights to religious decisions. Churches like people are free to hold any opinion no matter how popular or unpopular. There is actually a church in Kentucky that does not perform marriages between persons of different races and it still has its tax-exempt status. Whether churches should have income or property tax exemptions is an interesting issue in its own right but no different than it was before Obergefell.

  • This will not pave the way for the legalization of polygamy (or as I call it, old-school traditional marriage). Sorry, polygamists. To think that it does demonstrates a misunderstanding of how due process and equal protection work. The majority’s reasoning was based in marriage being a fundamental right. Marriage for the purposes of the opinion is a unity between two persons. No state–even those which allowed same-sex marriage before this case–defined it as unity of more than two people. Moreover, not one case in the marriage equality jurisprudence addressed polygamy. For the reasoning of Obergefell to include polygamy it would have to be demonstrated that plural marriage is a fundamental right. Nothing in our history suggests that it is. In fact the practice is explicitly illegal everywhere. For that reason states’ prohibitions on polygamy do not violate substantive due process. As for equal protection, polygamous relationships are not a protected class subject to equal protection. In order to invoke the EPC, a person or group must demonstrate discrimination–a denial of a right specifically based on that person’s membership of a class of people (e.g. race, ethnicity, gender, religion, sexual orientation). The bans on polygamy apply to people of all classes. Additionally, the 14th amendment does not prohibit all government discrimination, just unnecessary discrimination. Governments can discriminate for certain, narrow reasons and purposes. In most of the same-sex marriage cases, courts held essentially that there was no good reason to ban same-sex marriages. Opponents of plural marriage could probably demonstrate one or more good reasons to ban it.

There you have it. The Obergefell decision, while huge, is still narrow in the sense that it does not go beyond the issue of same-sex marriage. It will probably be used for other equal protection issues and also to further additional gay rights, especially as opponents try other methods to discriminate. I do not think actual religious liberty will be threatened. I do think that “religious liberty” as a euphemism for discriminatory intent will be. Litigants attempting to change religious customs of individual religions or to cut down churches would probably not be successful. Litigants attempting other ways to limit gay rights will likely not be successful either. Same-sex couples are rushing out to their city halls and courts to get married in the places where they couldn’t before. They’re not rushing to the churches that do not allow them to be married within their theology. Courts aren’t telling churches to do anything.