Broad Threats to Liberties In Light of SSM Decision

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On Friday, June 26, the U.S. Supreme Court legalized same-sex marriage across the nation by a slim 5-4 vote in the case, Obergefell v. Hodges. I offer below a simple breakdown of the ruling and its implications.

What Did The Decision Say, And What Does This Mean For The States?

  • The ruling held that all states are now required to issue marriage licenses to homosexual couples and to recognize same-sex marriages performed in other states.
  • A new fundamental constitutional right to same-sex marriage has been created under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
  • In one fell swoop, all state laws defining marriage as between one man and one woman and/or banning same-sex marriage were overturned and prohibited as unconstitutional.
  • All states are forced to re-define marriage as a genderless institution.

Decision Puts Religious Charities And Non-Profits In Danger Of Losing Tax-Exempt Status

Non-profits and religious institutions that refuse on grounds of conscience to endorse homosexual marriage could be stripped of their tax exempt status, be denied licenses needed to operate, or be targeted for exclusion from government aid and programs. This would include Catholic charities, social service agencies, hospitals, schools and universities.

Tax exempt status is generally granted for organizations deemed to be “for the public good” and in the public interest. If an organization opposing same-sex marriage is deemed as discriminatory and thereby operating contrary to public policy, it might well not qualify to be a tax-exempt, non-profit organization. Threatened with their financial security and ability to operate, religious institutions would be forced to choose between the free exercise of their religion or the ability to keep their doors open.

Religious Freedom Threats To Businesses And Individual Professionals

Extensive research done by The Becket Fund for Religious Liberty has identified at least 350 different state anti-discrimination laws that would automatically be extended to homosexuals once same-sex marriage is legalized throughout the country.

Under such anti-discrimination laws, individuals and businesses (such as florists, bakers, event venue owners, jewelers, dressmakers, photographers, etc.) that refuse to be complicit in a homosexual marriage ceremony could face severe civil penalties and debilitating fines. Professors and others who teach, write and speak about the immorality of homosexual marriage and behavior could be penalized or be in danger of losing their jobs on grounds of discrimination.

In his dissent, Chief Justice John Roberts recognized the absurdity of the situation, stating that the “freedom to exercise religious is – unlike the right imagined by the majority – actually spelled out in the Constitution.”

Coming Up: A Push For Polygamy

This ruling paves the way for legalizing polygamy and polyandry. Roberts warned that plural marriage could be legalized for the same reasons the Court gave for legalizing same-sex marriage.

Roberts stated that the decision “offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not …a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions… It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.”

Did The Supreme Court Have The Constitutional Authority To Do This?

I agree with Chief Justice Roberts’ position that this ruling demonstrates judicial activism and policymaking. The Constitution gives the People – not the Judiciary – the authority to write marriage law through their state legislatures.

Roberts stated that “this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have the power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgement'” [of what the current law says]. The validity of state laws defining marriage one way or the other is simply not a federal question.

Roberts continued, stating that “our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”

What Should We Do Now?

1. Federal and state lawmakers should immediately enact policies that provide broad religious liberty protection for individuals and organizations (for-profit and non-profit alike) believing that marriage is the union of one man and one woman.

One good example is the federal First Amendment Defense Act (H.R. 2802, S.B. 1598) that has been recently introduced in Congress. It bars the federal government from discriminating against those who object to same-sex marriage on moral grounds. State legislators should introduce similar bills, and we should provide unwavering support for such proposed legislation.

2. Individuals, business owners and institutions who believe that marriage is the union of one man and one woman should speak out (and, if possible, seek legal recourse) if they are being penalized or shut down for their beliefs.

3. We must work to eventually overturn Obergefell. But in order to get there, we need to foster and build a strong culture that understands the truth about marriage – that marriage and human sexuality exist not only for the good of the couple, but also for the good of children. Good marriage law should reflect this truth and should not focus solely on adult desires, but also on the best interests of children by optimizing the chances that children will be raised in a permanent, stable family unit by their biological mother and father.

Just as Roe v. Wade did not end the abortion debate (but rather, fueled it), the Supreme Court’s ruling in Obergefell does not end the marriage debate. When five unelected officers foist a controversial, fundamental change upon an entire nation when there was the possibility of letting the People decide the issue, it is anything but settled.

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Margaret Datiles Watts