On Same-Sex Marriage and Religious Freedom

Note: This is the first of a two-part series on the Obergefell v. Hodges ruling

The White House is lit up in rainbow colors following Friday’s ruling that legalizes gay marriage nationwide.

On the Surface

The Supreme Court ruled 5-4 on Friday that the Constitutional guarantee of equality under the law means that states cannot deny gays the right to marry. This major leap forward for civil rights will also lead to the destruction of legal discrimination on the basis of religious freedom.

Obergefell v Hodges

The case started when James Obergefell sued the state of Ohio for refusing to list him as the surviving spouse of his terminal husband. Obergefell argued that Ohio’s refusal to recognize gay marriages performed out of state violated the due process clause of the fourteenth amendment. While a district court sided with Obergefell, Ohio attorney general Mike Dewine had the decision overturned on appeal. The case then traveled to the Supreme Court, which vindicated Obergefell and legalized gay marriage nationwide, with Justice Roberts acting as the swing vote.

Religious Freedom

The dissent to Obergefell posits that Americans who oppose gay marriage on religious grounds will be vilified. In particular, it focuses on the ability of religious organizations to discriminate based on sexual orientation.

Even though religious organizations will retain their First Amendment right to enforce their stance regarding gay couples. their argument works only in theory. In the words of Justice Roberts, the right to “advocate” is not a guarantee to “exercise” religion without consequence. In fact, precedent exists for removing religious exemptions where marriage is concerned.

Cited in the dissent was the decision in Bob Jones University vs. the United States of 1983, which allowed the federal government to remove the tax-exempt status of a Christian university for discriminating against interracial couples. Furthermore, in its 1970 opinion in Walz vs. Tax Commission of the City of New York, the Supreme Court stated that removing tax exemptions from churches breaks down the separation of church and state, and diminishes the influence of the institution. It’s hard to imagine that such measures wouldn’t be taken against institutions that discriminate against gays, which means that religious institutions would be far less likely to engage in victimization.

Thus, the decision in Obergefell is an enormous leap forward in civil rights, and will also lead to another advancement: the striking down of barriers put up in the name of religious freedom.

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