Obergefell one month later: freedom of religion lives on, despite what you may have heard

On June 26, 2015, the United States Supreme Court issued its opinion in Obergefell v. Hodges, finding it unconstitutional for states to prohibit or refuse to recognize lawful same-sex marriages. In the four weeks since, there has been much written about the effect of the opinion on religious freedom – some accurate, some speculative, and some that can only be described as fearmongering. Though some questions remain unanswered, the following summarizes what we know today about the juxtaposition of the rights of same-sex couples to marry granted by the Fourteenth Amendment and the rights of religious freedom granted by the First Amendment.

What Obergefell says:

  • The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection clauses of the Fourteenth Amendment same-sex couples may not be deprived of that right and that liberty.
  • States must recognize lawful same-sex marriages performed in other states.

What it means:

States cannot deny the right to marry to same-sex couples, and they must recognize same-sex marriages performed in other states.

What it does not do:

  • It does not affect the Establishment Clause or the Free Exercise Clause of the First Amendment.
  • It does not overturn the federal Religious Freedom Restoration Act and similar state laws.
  • It does not require clergy to perform same-sex marriages in violation of their religious beliefs.
  • It does not require churches and religious organizations to allow same-sex marriages in their facilities.
  • It does not define sexual orientation or gender identity as protected classes with regard to employment (though the EEOC now does), housing, or public accommodations.

What churches and religious organizations should do:

  • Review your statement of faith to be sure it states your beliefs on marriage.
  • Include your statement of faith in certain policies and agreements, such as your policies and agreements for membership, facilities use, employment, volunteers, and pastoral counseling.
  • Ensure your policies are applied consistently to all affected people. For example, if your statement of faith includes the biblical definition of marriage as between one man and one woman and states that sex should only occur within a biblical marriage, same-sex marriage, adultery, and sex outside marriage are all inconsistent with your statement of faith. In the event of future litigation, it may be more difficult to assert religious beliefs as a defense to discrimination if you only apply those beliefs to certain classes of people.
  • Require your facilities to be used only for purposes consistent with your religious beliefs and tax-exempt purposes. Opening your facilities to uses outside of this context may make it harder for your organization to justify excluding certain classes of people based on religious beliefs.
  • Ensure your pastors, staff, and volunteers know your position on same-sex marriage and are prepared to discuss your beliefs or refer inquiries to a designated person. Encourage kindness and compassion in such discussions.

What comes next:

The Employment Non-Discrimination Act (ENDA) has been pending in the US Congress for several years. ENDA would extend the federal employment non-discrimination provisions of Title VII of the Civil Rights Act of 1964 to sexual orientation and gender identity and expression. The current version of ENDA contains broad exceptions for religious organizations.

Just last week, the Equality Act was introduced in both the House and Senate, and it goes much farther than ENDA in extending non-discrimination protections. In addition to employment discrimination, the Equality Act would prohibit discrimination based on sexual orientation, gender identity and expression, and sex (where not already prohibited) in public accommodations, public facilities, public education, and federal funding. The bill continues the religious exemptions currently found in the Civil Rights Act, but prohibits using the Religious Freedom Restoration Act as a defense to a discrimination claim.

Even without the passage of ENDA or the Equality Act, the Equal Employment Opportunity Commission concluded on July 15, 2015 that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” This issue will probably be decided in the courts if ENDA, the Equality Act, or similar legislation is not passed soon.

21 states and the District of Colombia, as well as many counties and cities, already prohibit discrimination in private employment based on sexual orientation, and 17 states and the District also prohibit discrimination based on gender identity. Many states and localities also extend these protections to public accommodations and housing. Currently, all state non-discrimination laws that apply to private employers have some form of exception for religious organizations.

Given the current state of public opinion and polling showing more people favoring laws prohibiting discrimination in employment, housing, education, and public accommodations based on sexual orientation and gender identity, we expect to see more litigation in this arena and potentially more legislation. It would not surprise us to see these issues before the Supreme Court in this decade.

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