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Religious Liberty After Obergefell v. Hodges

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Now that that Supreme Court has determined that “[t]he Fourteenth Amendment requires a State to license a marriage between two people of the same sex,”[1] how will the Court’s decision impact religious organizations and individuals? According to the four dissenting justices, the ruling means trouble ahead for religious organizations and individuals with conflicting religious beliefs. In particular, the ruling portends new court battles between their constitutional religious liberty interests and developing laws that provide increasing sexual orientation and gender identity (“SOGI”) protection in areas such as employment, education, facility usage, and housing.

In Obergefell, a majority of five Justices determined that same-sex couples have a “fundamental right to marry,” arising out of liberty protections under the Due Process and Equal Protection clauses of the Fourteenth Amendment. In so ruling, the Court reversed the Sixth Circuit Court of Appeal’s ruling[2] that states may define “marriage” as they wish. Instead the Court sided with other federal courts that ruled unconstitutional state laws that limited marriage to unions between one man and one woman.    

Speaking for the majority, Justice Kennedy only briefly touched on religious liberty considerations, saying, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Notably, there was mention of neither religious exercise, as guaranteed under the First Amendment’s free exercise clause, nor broader protections to be recognized for faith-based organizations beyond churches. 

In conjunction with their scathing critiques of the majority’s decision, three of the four dissenting Justices addressed religious liberty and right-of-conscience considerations in varying degrees of alarm and foreboding. Justice Roberts noted the majority’s omission of any reference to religious exercise. He further warned, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.” Justice Alito cautioned that the majority’s decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Justice Thomas flatly stated, “[T]he majority’s decision threatens the religious liberty our Nation has long sought to protect.” He continued, “It appears all but inevitable that the two [(same-sex marriage and religious institutions)] will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.” While the fourth dissenter, Justice Scalia, did not address religious liberty concerns in his own written dissent, he joined each of the three other dissenters, expressing his agreement with their statements.

The justices’ concerns have been echoed quickly. As noted by the Chicago Tribune’s June 28, 2015, editorial board:

We find it worrisome that the majority opinion barely flicks at the conflicts between the newly affirmed constitutional right to same-sex marriage and the religious freedoms that have been enshrined in the charter for centuries . . . What’s sure to follow [] are years are years of uncertainty and strife as those conflicts are sorted out.

In the wake of the decision, the stage seems to be set for more rounds of religious liberty versus SOGI-related civil rights conflicts. These battles will be fought on the fronts of still-emerging SOGI anti-discrimination laws regarding employment, public accommodations, and other areas. They will likely impact many houses of worship and other faith-based organizations. 

So far, key measures for protecting religious exemptions have focused on religious organizations’ sincerely held religious beliefs and how such beliefs are central to their activities. Such efforts are accomplished primarily through the following: (a) corporate documentation; (b) internal policies and practices within ministry organizations; and (c) publicly available representations.   

Practically, this means the religious organization should express clear doctrinal stances on sexuality in the organization’s articles of incorporation, bylaws, statement of faith, and policies. Leaders should check facility usage policies and agreements to ensure other organizations’ use of the religious organization’s facility is consistent with such religious beliefs. Religious employers should evaluate and possibly upgrade employment-related documentation and practices in relation to expected compliance with religious beliefs and standards. 

The Christian Legal Society will be offering a series of webinars on how same-sex legal issues affect religious houses of worship and other faith-based organizations. The first webinar will be on July 8, 2015 at 2:00 pm EST, featuring attorney Sally Wagenmaker as one of the presenters. For more information, see 

In addition, due to the legal complexity of these issues and the rapidly evolving legal landscape in specific jurisdictions, religious houses of worship and other faith-based organizations should seriously consider seeking skilled and experienced legal counsel to address their specific circumstances and goals. Our attorneys at Wagenmaker & Oberly are available to further assist as needed with client-focused legal services in these areas.

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