Marriage Equality, by Stephen Alcorn

Will the Court protect religious objectors to same-sex marriage?

Marriage Equality, by Stephen Alcorn

Marriage Equality, by Stephen Alcorn

Now that same-sex marriage is a constitutional right, the courts will be presented with a slew of cases asking for religious exemptions. And in his dissent from today's Supreme Court ruling in Obergefell v. Hodges, Chief Justice John Roberts gives a couple of examples:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.

So how will the Court decide such cases? In his majority opinion, Justice Anthony Kennedy has this to say about religious (and non-religious) objectors:

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.

Roberts finds it "ominous" that the majority speaks in terms of a freedom to "advocate" and "teach" rather than to "exercise" one's religion, in the language of the First Amendment. For that reason, he believes that "people of faith can take no comfort in the treatment they receive from the majority today." In their dissents, Justices Clarence Thomas and Samuel Alito concur.

I'm not so sure. On its face, the majority opinion only seems to point to a free speech right. But what exactly is "proper protection" for organizations and persons seeking to teach opposition to same-sex marriage? Teaching by example is at least as important as teaching by word. Wouldn't it undermine the ability of Catholic University to teach Catholic doctrine on the subject if it were required by law to provide married student housing to same-sex spouses?

Bear in mind that this Court takes an expansive view of Free Exercise rights. In 2012, it unanimously decided in Hosanna Tabor that any employee of a religious institution deemed to be performing "ministerial" work is not covered by anti-discrimination laws. And earlier this month, in Reed v. Town of Gilbert, it decided, also unanimously, that zoning laws could not discriminate against religious speech.

It's possible, then, that the Court will look for a way to permit faith-based educational institutions as well as religious bodies proper to evade the full implications of Obergefell. The problem is that to do so, it's going to have to get around its 1983 Bob Jones decision, which upheld the IRS' lifting of Bob Jones University's tax exemption because of the university's policy of barring admission to anyone in an interracial marriage.  The 8-1 decision determined that the Free Exercise clause does not protect a religious university if it is in violation of a compelling government interest (in this case, ending racial discrimination).

It's hard not to see today's ruling as announcing a compelling government interest in ending discrimination against gays and lesbians. Nevertheless, the majority opinion does not say that in so many words. Arguably, the Court could differentiate between a right to be considered for admission and an eligibility for married student housing, requiring the former but not the latter. But as for bakers and florists who want the right to refuse their services at same-sex weddings, I'd say they're out of luck.