The Supreme Court and the threat to religious liberty

Lisa Misner —  April 30, 2015
Recent arguments in  the Supreme Court have raised religious liberty concerns.

Recent arguments in the Supreme Court have raised religious liberty concerns.

An exchange between Supreme Court Justice Samuel Alito and U.S. Solicitor General Donald B. Verrilli Jr. on Tuesday is raising concerns about religious liberty.

The Supreme Court was hearing arguments April 28 in the case of Obergefell v. Hodges, which challenges the Fourteenth Amendment of the U.S. Constitution regarding same-sex marriage and state’s rights. While the Solicitor General was arguing for same-sex marriage on behalf of the Obama Administration.

In the exchange, which has sounded alarm bells for many religious leaders, Justice Alito referenced a 1983 Supreme Court decision which stripped Bob Jones University of its tax exempt status for barring interracial dating and marriage among its students.

Justice Alto questioned, “Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?”

Solicitor General Verrilli replied, “You know, I – I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.” (Read the transcript)

After the audio and transcripts of the hearing were released, Albert Mohler, president, Southern Baptist Theological Seminary, wrote about the exchange on his blog, “Keep that in mind as you consider the oral arguments in Obergefell v. Hodges, the same-sex marriage case that sets the stage for the legalization of same-sex marriage in all fifty states — and sets the stage for what may well be, in the United States, the greatest threat to religious liberty of our lifetime.”

“Make no mistake,” Mohler warned. “The Solicitor General of the United States just announced that the rights of a religious school to operate on the basis of its own religious faith will survive only as an ‘accommodation’ on a state by state basis, and only until the federal government passes its own legislation, with whatever ‘accommodation’ might be included in that law.”

In an article for the Ethics and Religious Liberty Commission’s website, the organization’s President Russell Moore and Director of Policy Studies Andrew Walker called the exchange the “most shocking moment in the arguments.”

They wrote, “If a revisionist view of redefined marriage is treated as a matter of civil rights, then the government could seek to use its tax power to coerce religious institutions to violate their own God-given consciences and their constitutionally guaranteed free exercise of religion. The Founders warned us that the power to tax is the power to destroy. The Solicitor General is signaling that at least this Administration is quite open to destroying those who hold a view of marriage held by the Roman Catholic Church, the Eastern Orthodox, evangelical Protestants, Orthodox Jews, Muslims, many Sikhs and Buddhists. It was even a position held by the President himself until his most recent ideological evolution.”

Other Christian leaders released a document expressing their fears for religious liberty prior to the oral arguments taking place.

The “Pledge in Solidarity to Defend Marriage” calls for the defense of biblical definition of marriage and for the state not to interfere by changing that definition. It is signed by several nationally known religious leaders, including Franklin Graham, president and CEO of the Billy Graham Evangelistic Association and Samaritan’s Purse; Dr. Paige Patterson, President Southwestern Baptist Theological Seminary; Dr. James C. Dobson, President and Founder Family Talk Action; and Dr. Robert Jeffress, Senior Pastor, First Baptist Church, Dallas.

The pledge states, “Redefining the very institution of marriage is improper and outside the authority of the State. No civil institution, including the United States Supreme Court or any court, has authority to redefine marriage.

According to the document, “Experience and history have shown us that if the government redefines marriage to grant a legal equivalency to same-sex couples, that same government will then enforce such an action with the police power of the State. This will bring about an inevitable collision with religious freedom and conscience rights.”

It ends with a warning of civil disobedience if the Supreme Court should rule the same-sex marriage is the law of the land. “We will view any decision by the Supreme Court or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law. A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the State directly conflicts with higher law. We respectfully warn the Supreme Court not to cross this line.”

A ruling by the Supreme Court is expected in June.

Lisa Sergent is contributing editor of the Illinois Baptist newspaper.

Lisa Misner


Lisa is IBSA Social Media/Public Policy Manager. A Missouri native, she earned a Master of Arts in Communications from the University of Illinois. Her writing has received awards from the Baptist Communicators Association and the Evangelical Press Association.