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Supreme Court’s Marriage Decisions and Faith-Based Services

The headline of Notre Dame law professor Richard Garnett’s column about the religious-freedom consequences of the Supreme Court’s same-sex marriage rulings has a question mark: “Worth Worrying About?” But his analysis, and that of many other religious freedom experts, makes it clear that there is every reason to worry.

In both the DOMA and Prop. 8 decisions, the Court made rather narrow technical decisions, but the effect has been to supercharge the effort to overturn the historic definition of marriage across the United States, including in the majority of states that specifically define in law or constitution that marriage is a man-woman relationship. That’s partly because the Supreme Court’s decisions have emboldened yet more government officials to follow the example of the federal and California officials in these two cases who simply decided not to defend in court valid laws that they disagreed with. And it is partly because, while the DOMA decision (United States v. Windsor) specifically upheld the right of states to define marriage as they choose, its language says that the only possible justification for a definition that excludes same-sex couples is a bias against gay couples and families–and that language has prompted judges and same-sex couples in multiple places to challenge opposite-sex marriage requirements as inherently bigoted and unconstitutional.

Thus, although the Supreme Court did not issue a Roe v. Wade-type ruling formally making same-sex marriage obligatory in every state in the Union, it drastically accelerated the move to overturn, by court or legislative action, every government definition of marriage as limited to man-woman relationships. That doesn’t mean that defenders of the traditional definition should and must give up or that those traditional definitions will inevitably be overturned, one by one, and soon. But it does mean that the legal arguments, cultural force, and political momentum of same-sex marriage proponents have been greatly increased, making it much more likely now than before the Supreme Court spoke that same-sex marriage will become the norm across the United States quite rapidly.

Religious-Freedom Problems. And that’s the reason for the worries about religious freedom. The reality is given right in the name of the most important book on the topic: “Same-Sex Marriage and Religious Liberty: Emerging Conflicts.” The book, edited by Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, laid it all out in stark detail, already in 2008. Read especially the chilling first chapter, by Marc Stern, “Same-Sex Marriage and the Churches”-he means, same-sex marriage and faith-based organizations and religious professionals.

Religious Exemptions. And yet, as the book shows, many or most of the all-too-predictable conflicts concerning adoption services, admissions policies, licensing of marriage counselors, eligibility for tax-exempt status, hiring decisions and employee benefits, rental of spaces for ceremonies, etc., etc., can be mitigated or eliminated . . . if legislators honor their constitutional duty to safeguard religious exercise by constructing careful and robust religious exemptions. What careful and robust religious exemptions to a same-same sex marriage law should look like is detailed in a letter authored by some of the same experts who wrote the book showing the looming problems.

Displaying a Religious Identity. One other thing is needed–and the Supreme Court same-sex marriage decisions have heightened the need for quick action. To the extent that the religious freedom of religious organizations is protected, it will only be protected for organizations that are deemed to be, in fact, religious. That means: Organizations that intend to be faith-full must ensure that they are holding themselves out to the public and also to their own employees and volunteers as religious organizations. It should be clear both to outsiders and to insiders that the organization is religious; this should be clear by what the organization says it believes, by how those convictions are translated–visibly–into its policies, and by how it operates: in accordance with its policies, which are aligned with its stated convictions.

In the current era, transparency about these matters must include defining explicitly what the organization understands marriage, acceptable sexual conduct, and even male and female to be-clear definitions that are explicitly rooted in the organization’s religious convictions.

Here’s good advice for faith-based organizations: don’t just worry–take action!