October 15, 2015
by John Kaempf

Same-Sex Marriage Is Now Legal Nationwide, Which Will Lead To Legal Battles Between Supporters Of This New Constitutional Right on the One Hand Versus Religious Institutions and Individuals That Support Traditional Marriage On the Other Hand

1. A summary of the opinion legalizing gay marriage in the U.S. Supreme Court’s Obergefell decision this year and its relevance to Oregon churches and religious schools

In a 5 to 4 split decision issued on June 26, 2015, the U.S. Supreme Court in Obergefell v. Hodges, 135 Supreme Court 2584 (2015), in an opinion written by “swing” Justice Kennedy (who was joined by the Court’s four liberal justices – Justices Ginsburg, Breyer, Kagan, and Sotomayor), held that, under the Equal Protection and Due Process clauses of the Fourteenth Amendment to the U.S. Constitution, (1) “samesex couples may exercise the fundamental right to marry in all States;” and (2) “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” The Equal Protection clause provides that a state shall not “deny to any person within its jurisdiction the equal protection of the laws.” The Due Process clause provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.”

The Court’s four conservative justices (Chief Justice Roberts and Justices Scalia, Thomas, and Alito) dissented in Obergefell.

The purpose of this article is not to advocate for or against gay marriage. This is a legal – not political – newsletter.

Rather, the purpose of this article is to address the Court’s ruling making gay marriage legal nationwide because, as recognized in both the majority and dissenting opinions in Obergefell, it will likely have an impact on the First Amendment free exercise of religion rights of churches, religious schools, other religious institutions, and individuals who support traditional marriage. This will likely lead to court battles pitting the new constitutional right to gay marriage against the longstanding First Amendment constitutional right to freely exercise religious beliefs, including the religious belief long held by a high percentage of Americans that marriage is only between one man and one woman.

The First Amendment to the U.S. Constitution states, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Similarly, Article I, sections 2 and 3, of the Oregon Constitution provide: “(2) All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences. (3) No law shall in any case whatever control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.” These provisions of Oregon’s Constitution are “worded more broadly than the federal First Amendment, and are remarkable in the inclusiveness and adamancy with which rights of conscience are to be protected from governmental interference. *** Oregon’s pioneers approved these broad and adamant protections. *** The history of religious intolerance was fresh in the minds of those who settled Oregon, many of whom themselves represented relatively diverse religious beliefs.” Meltebeke v. Bureau of Labor and Industries, 322 Oregon Supreme Court 132, 146 (1995) (emphasis added).

Therefore, religious institutions and religious persons can expect that the First Amendment right to freely exercise religion aspect of the recent decision in Obergefell legalizing gay marriage may eventually end up before the U.S. Supreme Court in another case.

Indeed, U.S. Solicitor General Donald Verrilli (the U.S. Government’s lead lawyer in the Obergefell case) admitted, under questioning from Justice Alito during oral argument, that religious universities risk losing their tax-exempt status if the Court found a constitutional right to same-sex marriage and they continue to advocate for traditional marriage. Mr. Verrilli conceded that “it’s certainly going to be an issue. I don’t deny that, Justice Alito.” (Emphasis added.) Some commentators believe that Mr. Verrilli’s position will also eventually extend to churches and other religious institutions that continue to support traditional marriage after the Obergefell decision legalizing gay marriage nationwide. Albert Mohler, writing on his eponymous website this year, and, citing the above-quoted it’s “going to be an issue” statement by Solicitor General Verrilli, states that Obergefell may well be “the greatest threat to religious liberty of our lifetime.”

Also, the week after the Court decided Obergefell, and as separately discussed in this newsletter, Oregon’s Bureau of Labor and Industries upheld a $135,000 award against “Sweetcakes by Melissa” when the owners of that bakery refused to bake a cake for a same-sex marriage ceremony based on their Christian belief against same-sex marriage.

Therefore, the free exercise of religion concerns raised by the Obergefell decision have immediately become real in Oregon, and litigation over this constitutional issue is just beginning in Oregon and nationwide.

2. The majority opinion in Obergefell

The majority opinion in Obergefell written by Justice Kennedy begins as follows: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

The majority then traces the history of marriage as an important societal institution. The majority states that “the annals of human history reveal the transcendent importance of marriage. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government.”

The petitioners in Obergefell (the parties who challenged the laws of some states defining marriage as only between one man and one woman) acknowledged

this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. *** Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.


The majority opinion in Obergefell further states that

this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order. The states in this country have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning. (Emphasis added.)

The majority opinion in Obergefell then recognizes the First Amendment free exercise of religion court battles to come by stating:

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.  Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right. 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 samesex couples from marriage on the same terms as accorded to couples of the opposite sex. (Emphasis added.)

3. The dissenting opinion by Justice Thomas in Obergefell and its prediction about the First Amendment free exercise of religion court battles the majority opinion will cause

In Obergefell, Justice Thomas, joined by Justice Scalia, wrote a dissenting opinion vehemently disagreeing with the majority opinion.  The heart of Justice Thomas’ dissent is that the Court’s majority opinion

is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. (Emphasis added.)

In a passage relevant to religious institutions, Justice Thomas also addressed his concern about the impact of the majority opinion on First Amendment free exercise of religion rights:

Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect. The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. *** [The] First Amendment enshrined protection for the free exercise of religion in the U.S. Constitution. *** In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.

The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice. *** Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty. (Emphasis added).

Also, in his typical “no holds barred,” colorful style, Justice Scalia, joined by Justice Thomas, stated as follows in his dissenting opinion in Obergefell, with a thinly-veiled “dig” at the majority opinion’s reliance on Confucius:

If, even as the price to be paid for a fifth vote [a majority], I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. (Emphasis added.)

Therefore, regardless of one’s opinion about same-sex marriage, the Obergefell decision establishes two important things: (1) Same-sex marriage is now legal in all 50 states; and (2) religious institutions and individuals that support traditional marriage through a sincere, longheld religious belief can expect to face legal challenges in the years to come. This includes a possible effort to strip their tax exempt status and to deny them insurance (as discussed herein).

As both the majority and dissenting opinions in Obergefell acknowledge, the First Amendment free exercise of religion battles have only just begun. Churches, religious schools, other religious institutions, and religious individuals should keep their First Amendment constitutional rights in mind as these disputes continue to occur.

4. Religious schools that support traditional marriage may lose their tax exemption, and churches that refuse to perform same-sex marriages may be sued and denied liability insurance.

The U.S. Supreme Court’s decision is Obergefell legalizing same-sex marriage has caused many commentators to raise concerns about its effects.

Kemberlee Kaye, writing on Legalinsurrection.com in July 2015, stated that persons fearful that Obergefell “could spell trouble for religious liberty were validated much sooner than anticipated. Less than 48 hours after the decision was handed down, New York Times columnist Mark Oppenheimer called for the end of tax exemptions for religious institutions” that oppose same-sex marriage. As noted above, Solicitor General Verrilli admitted under questioning from Justice Alito that religious universities that continue to support traditional marriage after the Obergefell decision legalizing same-sex marriage could lose their tax exempt status.

David French, a lawyer and staff writer for National Review, wrote on its website in July 2015 that because of the Obergefell decision,

lawsuits challenging church liberties are inevitable. *** Churches, like virtually every functioning corporation, protect against liability risks and the potentially ruinous costs of litigation through liability insurance. With same-sex marriage now recognized as a constitutional right ***, pastors are reaching out to insurance companies to make sure they’re covered. And at least one insurer [Southern Mutual Church Insurance Company] has responded with a preemptory denial: no coverage if a church is sued for refusing to perform a same-sex wedding. *** The defense of religious liberty is about more than legal doctrines. Even the most robust of legal protections can seem hollow indeed if a church risks financial ruin in response to a lawsuit. *** It appears that thousands of American churches are more exposed than they imagined. (Emphasis added.)

Therefore, Oregon churches, religious schools, and other religious institutions will need to review their liability insurance, attempt to protect their tax exemption, and be prepared for possible lawsuits if they exercise their First Amendment free exercise of religion rights and continue to support traditional marriage.

As shown above, the First Amendment constitutional court battles over this issue – the new constitutional right to same-sex marriage versus the longstanding right to freely exercise one’s religion and the right to free speech – have only just begun.