Is the “free exercise of religion” imperiled by Obergefell?

Last updated on: June 29, 2015 at 9:46 am by Jane the Actuary

Is the “free exercise of religion” imperiled by Obergefell? 2015-06-29T09:46:58-06:00 Jane the Actuary

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We don’t know.

Now, Kennedy’s opinion appears to promise protection to religious groups, but look at what he said (as quoted by The Federalist):

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.

Various pundits have labelled this a narrowing from “freedom of religion” to “freedom of worship” – that is, protecting only what takes place within church walls, not in public or in the home. But it’s not even an acknowledgement of “freedom of religion” at all — Kennedy could have made his statement if the First Amendment didn’t have the word “religion” in it at all, but merely referenced free speech and free assembly, because he essentially characterizes what religious groups as assembling together and speaking. But of course, Kennedy isn’t God — his omission of anything further simply means these questions are unanswered.

Nothing in the decision says anything directly one way or another about what religious groups may or may not be compelled to do. Yes, everyone pretty much agrees that ministers will not be compelled to solemnize marriages for same-sex couples, any more than that a lawsuit would succeed in compelling Catholics or other denominations to ordain women. But there are a lot of open questions.

What would Kennedy do if a case is brought to him with respect to a church which has a practice of renting out a space as a reception hall for non-members, or even of allowing use of the sanctuary by non-members, or of solemnizing marriages for non-members with eligibility requirements that are limited to such items as a premarital counseling session or two, but not conformity to any particular religious belief? (I raised this back last November, too.)

What would Kennedy do with respect to businesses, particularly small businesses, who are in some way involved in a “wedding industry,” from the florist* to the photographer to the wedding planner?

(The case of the florist is the easiest to solve, since a wedding package can just be unbundled and they one isn’t providing a wedding service at all, just a set of floral arrangements, though of course, it seems to me that florists make their money by calling the grouping of flowers a Wedding Package and doubling the price.)

What would Kennedy do with respect to all manner of organizations — churches, nonprofits, and businesses — which will now be compelled to treat a married same-sex couple identically to other married couples? From what I understand, there have already been court decisions around parochial school teachers, though I’m not certain of their outcomes. Adoption agencies have had to cease providing services if they were not willing to provide services identically to gays/lesbians seeking to adopt as a “second father” or “second mother.”

Does Obergefell change this? These were ongoing issues, so in a sense, nothing new here — except that, in each case, there’s a general principle that interests must be balanced, and Obergefell would appear to narrow considerably the circumstances in which religious freedom trumps the right of same-sex couples to be treated identically to others.

And is the tax exempt status threatened, especially for institutions that are not specifically churches per se, but church-affiliated? Mind you, I’d rather our tax structure were designed so taxes are not an issue one way or the other unless you actually earn profit, as a group or individual (which would primarily require eliminating property taxes), but in either case, that’s a political question, isn’t it? — which means that the hypothetical isn’t around court decisions but the risk that bureaucrats exercise their power without any check from Congress.

BY THE WAY: one more thought. Whether you agree that wedding service providers should be required to provide services to same-sex couples seems to depend on whether you perceive of this as, fundamentally, the same service that should be offered to all comers (like customers in a restaurant each ordering a Big Mac), or whether it’s permissible to differentiate between a “wedding” and a “gaywedding” on moral principles, as two distinctively different types of actions, don’t you think? In the former case, then it’s analogous to refusing to serve Black customers at Denny’s. In the latter case, it’s akin to mandating that if you are a butcher shop, you must sell all types of meat to your customers.

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