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On the same day that the Supreme Court ruled five-to-four in favor of legalizing same-sex marriage in every state, President Obama spoke these words in his eulogy for Rev. Clementa Pinckney, “Clem was often asked why he chose to be a pastor and a public servant … as our brothers and sisters in the AME church know, we don’t make those distinctions. ‘Our calling,’ Clem once said, ‘is not just within the walls of the congregation but the life and community in which our congregation resides.’”
The president’s words make the crucial point that religious individuals and religious organizations are called to acts of service in almost every dimension of public life. Our faith identities shape how we live our lives in every way and call us into community service and civic engagement. For this expression to reach its fulfillment, it is equally essential for faith-shaped institutions to be able exercise their faith identities in the public square through the diverse service areas to which they are called. Just like individuals, religious organizations need the freedom to practice in public life the convictions that animate them.
Following the Supreme Court’s decision in Obergefell v Hodges, the question now is how legislatures, courts, and public discourse will balance this decision with the rights of individuals and faith-based institutions who, in the words of a statement released by the Orthodox Union, “abide by religious teachings that limit their ability to support same-sex relationships.”
A Hopeful Reading of the Majority Opinion
Justice Kennedy’s majority opinion explicitly addresses the rights of “religious organizations and persons” under the First Amendment and the issue of religious freedom for those people and organizations whose religion holds that marriage is a divinely created union of one man and one woman. Kennedy writes that religious persons and entities should be given “proper protection” to “teach” and “advocate” for “the principles that are so fulfilling and so central to their lives and faiths.”
According to the dissenting opinions, Kennedy’s single paragraph on religious freedom is not substantive enough. "The majority graciously suggests that religious believers may continue to 'advocate' and 'teach' their views of marriage," writes Justice Roberts. "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses."
Let us take a closer look at the majority opinion's choice of verbs and the language used to animate the bounds of what the First Amendment protects for religious dissenters. While it may seem very granular, such analysis is important because grammar is a good friend to judges. Just what did the majority opinion intend in its brief comments? Here’s a hopeful reading.
The court could have simply chosen to affirm the faith-based freedoms to “speak” and “believe,” but the majority chose the words "advocate" and "teach." Whatever limits the verbs circumscribe for religious freedom, they are undoubtedly broader than speech and belief alone.
Kennedy’s selection of the verb “advocate” places emphasis on the freedom of speech and possibly even freedom to petition the government. And while it quite clearly demonstrates that a faith-based organization could speak out publicly based on a “sincere conviction, that, by divine precepts, same-sex marriage should not be condoned,” the language does less for clarifying that the same faith-based organization would have the right to hire based on those sincere beliefs.
Likewise, Kennedy’s selection of the verb “teach” has some substance, but also leaves something to be desired. “Teach,” as Merriam-Webster first defines it, is “to cause or help (someone) to learn about a subject by giving lessons.” In this context, it seems clear that parents will be allowed to teach their children what they believe marriage means, houses of worship will be permitted to continue to instruct their followers on what their religious doctrines say about marriage, and, quite probably, religious institutions of learning will be able to continue to instruct their students on what marriage means based on their religious tenets.
Yet “teach” is also defined more broadly by Merriam-Webster as “to instruct by precept, example, or experience.” Based on this more expansive definition, a strong argument could be made that teaching necessitates consistency in lived examples and authentic expressions. It would not make sense to affirm in a landmark Supreme Court ruling that a faith-based institution has the right to teach the traditional definition of marriage to its students, but then not be permitted to carry out human resources practices that bring to life, through example and experience, these very teachings.
While this interpretation may indeed be deemed hopeful, it is necessary for us to consider it. In his discussion of religious freedom, Kennedy could have omitted the term “religious organizations” and replaced it with “houses of worship” or something else akin to a more narrow definition of “church.” But interestingly, he did not. He said, “The First Amendment ensures that religious organizations and persons….” Listing religious organizations before individual believers acknowledges the heightened concern there must be for institutional religious freedom.
“Our faith calls us to pursue justice and engage in service, both as individuals and as institutions.”
In another encouraging element in the majority opinion, Kennedy clearly addresses what governments must do; the new definition of marriage is what governments must adopt. Everyone else, every other organization can maintain its own views. Kennedy correctly emphasizes that the Court’s decision, based on the Fourteenth Amendment, applies only to state actors, not to non-governmental entities. But there are some major concerns: Will faith-based organizations that adhere to orthodox precepts on marriage be banned from receiving government grants? (Faith-based organizations are currently allowed to receive government grants.) Will religious institutions be prohibited from engaging in hiring practices shaped by their faith? Will faith-based entities have to wonder whether their tax-exempt status will be challenged?
Marriage Equality and Institutional Religious Freedom
The majority opinion takes specific note of religious freedom, even institutional religious freedom, and it defines “proper protection” for religious people and organizations more broadly than just speech. Yet the majority opinion also leaves many religious freedom questions, especially complex situational questions for faith-based institutions, unanswered. So what should legislatures and courts do in the future about the connection between marriage equality and institutional religious freedom?
University of Virginia law professor Douglas Laycock, a religious freedom legal scholar and same-sex marriage proponent, makes a compelling case in an amicus brief for upholding religious freedom for institutions and people who affirm a traditional definition of marriage:
The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil. The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages.
Laycock also points out that in almost all of the states where same-sex marriage has been recognized by a court, rather than by popular decision, there are no religious freedom protections in the law. By contrast, every one of the states where same-sex marriage has been passed by a referendum, initiative, or legislation, has also passed accommodations for religious organizations. Laycock acknowledges that, “of course the Court cannot render advisory opinions on specific cases, but it should indicate that it understands the range of religious liberty implications that will have to be addressed.” Laycock rightly urged the court to “acknowledge their existence,” which, to its credit, the majority opinion did.
But it remains to be seen what the implications of Kennedy's opinion will be for religious freedom generally, and the possible implications for faith-based organizations. Will the lower courts and legislatures take these implications seriously when they arise?
Protecting Institutional Religious Freedom
To ensure that organizations of faith continue to have the freedom to serve and make their distinctive contributions to the common good, we, as people of faith, must support legislative protections on a state and local level and help to advance laws with broad religious freedom protections for religious organizations. This includes legislation that protects the tax status, staffing rights, government partnership opportunities, and other autonomy rights of religious organizations. People of faith must also reach out to those celebrating the legalization of same-sex marriage to work together to implement this new legal and social reality in a way that upholds religious freedom and its practical implications.
The president’s eulogy for Rev. Pinckney vividly describes how faith inspires acts of community service and civic involvement. While these are points I wish were made in the president’s response to the Supreme Court decision (where he briefly brought up religious freedom), he said them nonetheless, and on the same day. He said, “Our Christian faith demands deeds and not just words; that the ‘sweet hour of prayer’ actually lasts the whole week long; that to put our faith in action is more than just individual salvation, it’s about our collective salvation; that to feed the hungry, clothe the naked and house the homeless is not just a call for isolated charity but the imperative of a just society.”
Our faith calls us to pursue justice and engage in service, both as individuals and as institutions.
The Supreme Court's ruling is being heralded as an upholding of such cornerstone American values as inclusion, tolerance, and yes, even love. The Twitter hashtag #Lovewins has permeated public discourse. And love really can win, if organizations and individuals are permitted to continue to serve as their faiths call them to do, including if their faiths lead them to embrace a traditional view of marriage. Faith-shaped institutions should continue to boldly express the compassion and truth their faith calls them to in the way they engage in public policy, in their organizational practices, and in how they cultivate their public perception.
- Chelsea Langston is the Director of Equipping and Membership at the Institutional Religious Freedom Alliance, a division of the Center for Public Justice. She holds a JD from the University of Michigan and is a licensed attorney by the State Bar of Michigan.