So the Supreme Court has spoken, and gay marriage is the law of the land. Those of us who stood up for traditional marriage must learn to take “no” for an answer. But the bigger question is: will the winning side take “yes” for an answer?
George Will has pointed out that during oral argument of Obergefell v. Hodges, Chief Justice John Roberts said that people seeking same-sex marriage are “not seeking to join the institution” but are “seeking to change what the institution is.” Will went on to point out that “this institution has been changed by American attitudes and behavior. Marriage in America will be, over time, what Americans say it is, and last week’s decision came with almost three in four Americans already living in states where same-sex marriage is legal.”
Of course he failed to point out that over half of those states had same-sex marriage imposed upon them by courts which overruled the voice of people who went to the ballot box to make their feelings known.
It’s been pointed out that the gay rights community having won its battle, is now shooting the wounded. It’s obvious that the next battleground is going to be on the issue of religious freedom. During oral argument, Solicitor General Donald B. Verrilli, when asked about tax exemptions for religious institutions which refuse to abide by the decision said, “You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue.”
In his dissent, Chief Justice Roberts pointed out:
“Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”
We’re already seeing the battle lines being formed. Illinois’ own Dick Durbin, that execrable crud that passes for a United States Senator, has said the issue of tax exemption is “challenging area” and noted that he’d have to “think about it long and hard.” Given Durbin’s record on other First Amendment issues, it’s not hard to figure out how he’d come down on this one.
More ominously, at least one insurer has informed its customers that it will not provide coverage if a church is sued for refusing to perform a same-sex wedding. On July 1, David Karns, vice president of underwriting at Southern Mutual Church Insurance Company, wrote an “all states” agents’ bulletin addressing same-sex marriage. It begins:
“We have received numerous calls and emails regarding the Supreme Court’s ruling on same-sex marriages. The main concern is whether or not liability coverage applies in the event a church gets sued for declining to perform a same-sex marriage. The general liability form does not provide any coverage for this type of situation, since there is no bodily injury, property damage, personal injury, or advertising injury… There is no coverage for any judgments against an insured.”
Before this battle gets out of control, the Illinois legislature needs to examine the protections of religious liberty which may be at risk as a result of Obergefell. The State’s Religious Freedom Restoration Act will likely provide little protection in conflicts between religious liberty and same-sex marriage. The balancing test of our RFRA, requiring that the government demonstrate a “compelling governmental interest” if it wishes to burden religious expression will be worthless after Anthony Kennedy’s decision that marriage can mean anything because it now essentially means nothing.
David French has proposed three things that state legislatures should consider in the aftermath of Obergefell: legislation which mirrors the First Amendment Defense Act, a campus freedom of association act, and an act protecting the accreditation of Christian schools and colleges, which would, in order:
- Prohibit denials of tax exemptions, grants, loans, accreditation, licenses, and a host of other state benefits merely because a person holds orthodox Christian views on sexual morality;
- Protect faith-based organizations from being found to be “discriminatory” merely because they want leaders to share the group’s faith; and
- Create a private right of action to permit schools in their jurisdiction to sue for injunctive relief and damages in the event that an accreditor violates the law and demands that a school take any action inconsistent with its religious mission.
We face a serious risk that after Obergefell liberty will turn out to be a one-way street, and will be guaranteed for some people while denied for others. I know that right now the budget battle is sucking all the oxygen out of the room, but we cannot lose sight of what’s happening outside of Springfield to the many Illinoisans who daily practice their faith in the way they live their lives.