Long-held American views of religious liberty may be rapidly shifting in the wake of a June 26 Supreme Court ruling legalizing same-sex marriage across the country.
A growing cadre of activists, commentators and politicians now suggest religious freedom stops at the entrance to a public business, or even a private university's married student housing, even if the owner believes same-sex marriage a sin.
"I would not want to be heading a fundamentalist academy that was refusing to allow a same-sex married couple to live in married student housing, particularly if I was getting a large amount of taxpayer money to run my institution," said the Rev. Barry Lynn, a United Church of Christ minister and executive director of Americans United, a church-state separation advocacy group. "That would be a risky legal proposition now."
He predicted the overall question of how businesses and institutions can maintain their beliefs in a public marketplace will be "the key church/state question of the next 10 years."
Greg Scott, a spokesman for the Alliance Defending Freedom, a public interest law firm defending religious liberty cases, said this new advocacy is the stalking horse for greater changes in how religious liberty is understood.
"The endgame is to replace religious freedom with massive coercive government power over the lives, minds and beliefs of individuals who were once protected by the First Amendment" and the 1993 federal Religious Freedom Restoration Act, Scott said.
The developing standoff is disconcerting to religious freedom scholars who have researched and followed the nation's long history of compromise and tradeoffs in protecting religious liberty. Douglas Laycock, a law professor at the University of Virginia who has argued religious freedom cases before the U.S. Supreme Court, said there has been "an appalling lack of tolerance on both sides" of the marriage debate, first among opponents who believed they could outlaw same-sex weddings, and now from those supporting the changes.
"If we care about liberty and justice for all, we can (with only very occasional exceptions) protect marriage equality and elaborate same-sex weddings without requiring religious conscientious objectors to assist with those weddings," Laycock said via email. "The religious side wasn't interested in that solution when they thought they could prohibit same-sex weddings entirely. And now the gay-rights side isn't interested in that solution. With their own rights established, they are now intent on crushing the rights of dissenters."
Institution vs. individual
Much of the current conversation about potential religious liberty changes has been fueled by a solitary paragraph in the majority opinion authored by Justice Anthony Kennedy. The jurist declared that religious groups "and those that adhere to religious doctrines" can "teach" their principles on marriage or "advocate" for them.
Responding in dissent, Chief Justice John Roberts said the majority's view offers "no comfort" to people of faith when contemplating the further religious liberty issues bound to arise from the ruling, saying that, "ominously," Kennedy's opinion doesn't discuss free exercise protections for groups or individuals.
The conscience rights of bakers, photographers and florists who have refused to service gay marriage celebrations have already been legally challenged. On Monday, an attorney for Colorado baker Jack Phillips appealed to the state court a civil rights commission ruling ordering him to prepare cakes for same-sex weddings, despite religious objections, the Associated Press reported.
Since the high court legalized gay marriage, the discussion has broadened to what religiously based institutions, such as colleges and universities, have to offer to legally married same-sex couples in terms of student housing or employee benefits.
"In the evolving discussion of gay rights and gay marriage and what it means, we should have a debate about whether tax exemptions should be retained for institutions that refuse to accept marriage equality," the Rev. Lynn said.
These concerns, as well as the cases involving private businesses, gave rise to the "First Amendment Defense Act," introduced in the Senate late last month by Sen. Mike Lee, R-Utah, and in the House by Rep. Raúl Labrador, R-Idaho. Utah's senior senator, Orrin Hatch, a coauthor of the 1993 federal religious freedom bill, is a cosponsor of the new measure.
Writing in the Deseret News, Lee said "under this bill the IRS could not revoke the tax-exempt status from any of the tens of thousands of religiously affiliated schools in America — pre-schools through college — whose religious convictions dictate that they maintain the traditional definition of marriage."
The proposal promises to provoke a debate defining the limits to what the Constitution protects in terms of religious liberty.
In a recent interview with the Christian Broadcasting Network, Rep. Debbie Wasserman-Schultz, D-Florida, argued that the First Amendment's free exercise protections apply to "legitimate religious institutions" but not individual believers.
"If you’re a church and a religiously affiliated organization then you have wider latitude in terms of the Constitution and the protections that the First Amendment provides," said Wasserman-Schultz, who also chairs the Democratic National Committee. "But, in this country, we do not allow people to discriminate and that’s, I think, is where the important distinction needs to be drawn."
Nicholas Miller, a professor of church history at Andrews University in Berrien Springs, Michigan, and author of "The Religious Roots of the First Amendment," said the idea of limiting the Constitution's free exercise clause to religious institutions goes against centuries of thinking and legal precedent.
The free exercise of religion "has almost exclusively been viewed as (a right of) individuals and individual conscience," he said.
Long-held views of what religious freedom means for individuals hasn't stalled the latest efforts to redefine it. Americans United this week launched "Protect Thy Neighbor," which the Rev. Lynn said would define religious freedom as "a protection against government action, but not a sword to be wielded against other people's rights."
He said the campaign is an effort to counter the "apocalyptic description" of what the court's marriage ruling would do and call out the "red herrings" that religious liberty advocates say will happen as a result of legalizing gay marriage.
He said forcing churches and clergy to perform same-sex weddings they disagree with is one of those misconceptions. Another is the notion that a congregation could lose its tax exemption over its religious beliefs on marriage, he said.
The Rev. Lynn cited the Colorado bakery case as "an example where the claim of religious freedom has gone too far."
"Simply baking a cake, delivering a pizza, renting out a pavilion — this does not make you a participant in anything," such as a wedding, he said.
Before the Americans United announcement, the American Civil Liberties Union, which enthusiastically supported the federal Religious Freedom Restoration Act some 22 years ago, declared in a Washington Post commentary late last month that it no longer backs the measure. Deputy legal director Louise Melling wrote that legal interpretations, such as the Supreme Court's Hobby Lobby ruling, disadvantage those who don't share a company owner's religious beliefs.
In his dissent of the same-sex marriage ruling, Roberts predicted this latest debate over the definition of religious liberty and that the justices will likely revisit it.
"Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage — when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples," Roberts wrote.
Recalling oral arguments in the case, Roberts said U.S. Solicitor General Donald Verrilli "candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage."