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How the Supreme Court's decision could affect the liberty rights of religious organizations and individuals 

In a 5-4 ruling released today, June 26, 2015, the U.S. Supreme Court has held that the Fourteenth Amendment requires states to (1) license marriages between two people of the same sex and (2)recognize same-sex marriages that were performed out-of-state.

The Court also found that the First Amendment protects the right of religious organizations and "persons" to "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." (p. 27)

The majority opinion, written by Justice Kennedy identified four reasons that same-sex marriage is a fundamental right under the Constitution. First, the Court cited the individual right to make decisions about marriage. Secondly, citing precedent created in Griswold v. Connecticut where the Court upheld the right of couples to use contraception, the Court found that same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Thirdly, the Court rejected the idea that the right to marry must be conditioned on the ability to procreate and that the recognition of marriage would provide stability to the children of same-sex couples. Finally the Court found that same-sex couples should be entitled to the same legal and social benefits received by opposite-sex married couples.

Justice Kennedy addressed religious concerns. "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."

In his dissent, Justice Roberts called the decision "an act of will, not legal judgment," and wrote that "[t]he fundamental right to marry does not include a right to make a State change its definition of marriage."  He also stated that marriage is not an "enumerated" right under the Constitution and that the majority essentially legislated from the bench.


While the Court has determined that same-sex marriage is a national right, and simultaneously upheld the First Amendment right of religious or non-religious "persons" to speak (and even advocate) against same-sex marriage, the issue remains as to whether businesses, which now have First Amendment rights – see  Burwell v. Hobby Lobby, and individuals have a right to discriminate against same-sex couples by refusing to provide services or other benefits that they provide to opposite-sex couples.

The right not to participate in same-sex marriages has been a subject of intense debate in recent months as some state legislatures have rushed to enact Religious Freedom Restoration Acts (RFRA) in an effort to provide statutory protections for the rights of conscience of those who oppose same-sex marriage. The constitutionality of some state RFRAs and the rights of wedding service providers will be the subject of legal battles.

The concept that religious institutions are exempt from following generally applicable laws on grounds of conscience would also seem to be supported by the Court's decision in Hosanna-Tabor v. EEOC (2012).

But while the dicta of the Supreme Court's decision seems to provide some recognition of the right of religious schools to teach against same-sex marriage, it does not address whether they could lose their tax exempt status if they enact policies that prohibit recognition of same-sex marriage in terms of student housing, hiring practices, and employment benefits. It is anticipated that the more religious an institution, the more likely it is to retain the right to discriminate against same-sex couples, but if tax-exempt status is considered a privilege and the schools receive governmental funding, the issues could become murky.

It is likely that there will be an increased effort in Congress to pass the First Amendment Defense Act which would prohibit the federal government from denying or revoking a tax exemption or disallowing a charitable deduction to an institution that opposes same-sex marriage for religious reasons, and a corresponding effort in the state legislatures.

As to the legality of same-sex marriage, the issue is resolved.


The decision in Obergefell v. Hodges is available here: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf



  1. Nicholas Miller says:

    But remember, Mike, that Hosanna Tabor had to do with the Ministerial exemption, not with employees or institutional policies generally. So yes, there is no doubt that church's can refuse to hire practicing gay pastors or priests, but the case has nothing to do with employment policies as to other positions, or as to students. I'm very concerned with Kennedy's rather limited language, which seems to protect religious bodies rights to teach and preach, but he says nothing about act or implement. We are in for a very rough ride, I'm afraid, on the religious liberty front, especially for religious colleges and hospitals.

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