Supreme Court and SSM: What consequences for FBOs?
(by Stanley Carlson-Thies)
At the US Supreme Court’s oral arguments on April 28, 2015, on whether same-sex marriage is a constitutional right, the federal government’s top lawyer intimated that faith-based organizations might lose the freedom to maintain a religious conviction that marriage is a man-woman bond. That would upend many deep convictions and key practices. His statement should be a wake-up call for faith-based organizations.
If the Supreme Court decides marriage must be extended to same-sex couples under the Equal Protection Clause of the 14th Amendment, then faith-based organizations will face new pressures and will need to dramatically expand their advocacy for the freedom to remain distinctive. But even before the Supreme Court rules, the oral arguments should give faith-based organizations much reason to think carefully about their identity and practices and how these are grounded in their religious convictions, and much reason to engage with federal, state, and local policymakers to say and show how their good works are rooted in their faith commitments. Our nation has historically valued living by conviction, even when a conviction is unpopular, and our society and government depend on the good works accomplished daily by a vast number and variety of faith-based organizations. Even more than before, now is the time for faith-based organizations to be transparent about how their practices reflect their deep religious convictions, and to witness publically about how their works of service grown from those convictions.
At the Supreme Court’s same-sex marriage oral arguments (transcripts here and here), the federal government’s top lawyer—Solicitor General Donald Verrili–hinted that faith-based organizations might lose their freedom to live out their beliefs on traditional marriage in both staffing and services. Asked by Justice Alito if faith-based nonprofits that believe marriage to be the partnership of a man and a woman might lose their tax-exempt status, the Solicitor General said, “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.”
Just what kind of “issue” will faith-based organizations face? The interchange referenced the Bob Jones University decision from 1983. The IRS had stripped BJU of its tax exemption because the university’s ban on interracial dating violated the vital national policy against racism, and the Court said that religious freedom was no shield for BJU. Will the Court consider a commitment to traditional marriage to be the equivalent of opposition to racial equality? But the Bob Jones policy was an outlier—the Civil Rights Movement was upheld by religious motivations, notwithstanding reluctance and opposition by some; racism is not characteristic of the millennia-old traditions of major religions; marriage as a unique union between a man and a woman is a deep commitment over thousands of years by many different faith traditions. In short, the Court will have to wrestle afresh with the intersection of religious freedom and a claim for equality.
Protection for religious convictions supporting traditional marriage came up two other times in the back-and-forth between the Justices and the various lawyers. Mary Bonauto, arguing for a right to same-sex marriage, assured Justice Scalia that dissenting clergy would not be forced to perform same-sex marriages. However, when Chief Justice Roberts asked Solicitor General Verrili whether a religious school with married-student housing would be required to open the housing to same-sex couples, he said it would depend on the laws of the various states and on whether an eventual federal law on sexual orientation protects religious freedom.
The assurances about respect for clergy do not go far to reassure faith-based organizations with policies and practices based on traditional marriage. They do not specialize in worship but they are religious organizations nonetheless and need legal protection if they dissent from changing views on marriage. There is no reason to accept easy assurances that the coming of marriage equality means that every view of marriage will be respected.
Various Justices expressed some skepticism about the validation they were being asked to give to a view of marriage deeply different than what societies and religions have believed for millennia. Of course, such skepticism is no guarantee that the definition of marriage will be left in the hands of the states and their voters and elected representatives.
Assuming, as seems very likely, a ruling that states cannot reserve marriage to heterosexual couples, will the Court decide in a way that protects the religiously grounded belief in the traditional concept of marriage? The several exchanges noted above show that the Court is aware of the vital religious freedom issues at stake. That is a hopeful sign. Various amicus briefs clearly described the issues; an essay by Carl Esbeck points out that two of the briefs stressing problem areas were filed on behalf of religious organizations representing some 40% of the US population! A key brief, authored by premier church-state experts Douglas Laycock, Thomas Berg, and others, specifically proposed to the Court how it can strongly support religious freedom at the same time that it rules in favor of same-sex marriage.
As the Laycock brief recommends, the Supreme Court, if it declares a right to same-sex marriage, can and should stress the religious freedom consequences of that decision, and invite the Congress and state legislatures to act to protect religious freedom–one of their fundamental duties. There is good precedent. States that have passed marriage-equality laws have included protections for religious exercise and religious organizations, to a greater or lesser extent. And when Canada’s Parliament enacted same-sex marriage, it specifically included protections for religious freedom, including prohibiting the stripping of tax-exempt status from a religious charity because the charity remains committed to opposite-sex marriage. The Supreme Court can both accept same-sex marriage and protect the freedom of religious people and organizations to continue to live in accordance with their deeply religious commitment to man-woman marriage. Such a ruling is the only way to ensure genuine marriage equality.