Obergefell has opened a religious freedom can of worms, Justice (Anthony) Kennedy seemed to recognize that risk, and he tried to convey a certain level of respect for traditional views on marriage, but still it'll be several years before we know where all the worms end up, and where they end up will depend in large part what we do about it. —Gene Schaerr
PROVO — The lawyer Utah hired to defend its marriage law says the U.S. Supreme Court lobbed a dozen "religious freedom grenades" when it legalized same-sex marriage across the country last month.
Gene Schaerr called the high court's decision in Obergefell v. Hodges a "colossal mistake" that threatens individual and institutional religious liberty.
"The opinion, unintentionally, I think, launched at least 12 religious freedom grenades that are still in the air, and I'll call those the 'dirty dozen,'" he said Tuesday at a conference on religious freedom hosted by the BYU International Center for Law and Religious Studies.
Alexander Dushku, an attorney with the Salt Lake firm Kirton McConkie, and University of Illinois law professor Robin Fretwell Wilson joined Schaerr in a discussion on the religious freedom implications of the court's ruling.
Schaerr, an accomplished appellate attorney and former clerk to Justice Antonin Scalia, unsuccessfully argued Utah's appeal of a federal judge's decision overturning the state's voter-approved Amendment 3 defining marriage as between a man and a woman.
He said he has no regrets about taking the case or the way he approached it, and hopes it helped lay the groundwork for a future Supreme Court to reverse the Obergefell decision.
Schaerr said the ruling put at risk the religious rights of professional counselors, other professionals, schoolteachers, parents with children in public schools, government officials such as county clerks, and wedding service providers.
Utah, he said, largely handled all but the public accommodations issue with legislation earlier this year that combined anti-discrimination in housing and employment with religious liberty protections.
"All six of these issues are likely to be big problems in other states for some time to come," he said.
Acting consistently with their teachings on traditional marriage could threaten churches' tax-exempt status, religious schools' housing policies, accreditation, government contracts and employment and churches' ability to have marriages recognized, Schaerr said.
"Obergefell has opened a religious freedom can of worms," he said. "Justice (Anthony) Kennedy seemed to recognize that risk, and he tried to convey a certain level of respect for traditional views on marriage, but still it'll be several years before we know where all the worms end up, and where they end up will depend in large part what we do about it."
To "dodge" the grenades, Schaerr said traditional marriage supporters should calmly and consistently explain why each issue has genuine religious liberty concerns. They should also "get all of the protective legislation that we can" at the state and federal levels.
In addition, he said people shouldn't be afraid to go back to the Supreme Court because it has a good track record on private religious conduct.
Dushku, who wrote a friend-of-the-court brief supporting traditional marriage for The Church of Jesus Christ of Latter-day Saints and other churches in the Obergefell case, said he sees the latest Supreme Court ruling going one of two ways.
Two landmark Supreme Court civil rights decisions, Brown v. Board of Education and Loving v. Virginia, had a profound legal and cultural effect on racism, making it a social taboo, he said. There is little freedom or social space to be a racist, he said.
If society equates support for marriage between a man and a woman culturally and legally with racism, religious liberty as a practical matter would be severely restricted, Dushku said.
"Under that model, government itself will come to have powerful justifications for suppressing and marginalizing religious beliefs, speech and especially actions that challenge the new right to same-sex marriage," he said.
But the same-sex marriage opinion could follow the path of Roe v. Wade, which made abortion a fundamental right, Dushku said.
Pro-lifers can be open and frank about their beliefs in public, the workplace, at school and in other settings. There might be criticism and debate, but people don't become social pariahs for opposing abortion, he said.
"If in the aftermath of the same-sex marriage decision our nation follows something like the example set in the aftermath of Roe v. Wade, then religious liberty will survive and, in fact, probably do quite well," Dushku said. "There will be hard times, to be sure, but eventually there will be accommodations for those who honestly dissent from the new gay marriage orthodoxy."
Abortion decision lessons
Dushku said the question is: How did opposition to abortion secure a place of respectability in culture and law? How did society get to a place where pro-lifers could still have careers and be open and express their views without becoming outcasts?
One of the key reasons, he said, is that pro-life Catholics, evangelicals and others decided they would not or could not be silent.
If supporters of traditional marriage retreat, are intimidated into silence and give up trying to find the right words to defend their beliefs, then the court's gay marriage decision will become a disaster for religious liberty, Dushku said.
But if they find ways to explain their beliefs with reason, kindness and love and cheerfully but resolutely endure the indignities that come upon them without bitterness, then culture and law will carve out enough space for people of faith to participate in all aspects of American life, he said.
Dushku said that won't happen overnight.
"Carefully chosen lawsuits will have to be filed. We may even lose some friends on Facebook, or maybe even some real friends," he said.
Government and marriage
In her presentation, Wilson, the Illinois law professor, urged people to resist attempts to get government out of the marriage business as lawmakers in some states, including Utah, have proposed in the wake of the same-sex marriage decision.
Civil and religious marriage is intertwined, she said. While a couple could get married civilly but not religiously, she said, the opposite is a crime in all 50 states.
"That's actually a good thing, that we collapse religious marriage with civil marriage because we want religious marriage to have civil effects. Without them, we will have stranded religious adherents in the position of mere cohabitants under the law, which means that they have crappy remedies," said Wilson, who helped craft Utah's anti-discrimination and religious freedom laws.