Liberty & Justices: How the pending marriage ruling becomes a religious freedom issue

Meredith Flynn —  May 14, 2015

NEWS | Illinois Baptist

As the U.S. Supreme Court prepared to hear oral arguments April 28 in the case of Obergefell v. Hodges, much of the conversation swirled around the ultimate outcome: Will the Court decide this summer that same-sex marriage is a constitutional right?

But during the arguments and in subsequent analysis, a new issue emerged, mostly due to an exchange between Justice Samuel Alito and Solicitor General Donald B. Verrilli.

If the Court legalizes same-sex marriage, will religious institutions—for example, Christian schools—stand to lose their tax exempt status if they oppose same-sex unions?

Verrilli’s response that “it’s certainly going to be an issue” set off warning bells for Christians, churches, schools and other religious organizations that before had been merely waiting for the Court to likely decide in favor of same-sex marriage.

Instead, the focus shifted from the Fourteenth Amendment and equal protection under the law, to the First Amendment and freedom of religion. The Court is expected to issue its decision in June, making the Southern Baptist Convention’s focus on prayer for spiritual awakening in America all the more timely.

“Unfortunately, the defense of marriage in our culture has now turned into a defense of religious freedom,” said IBSA Executive Director Nate Adams. “I pray for a miracle in the Supreme Court’s decision in June, for if that doesn’t happen churches will find themselves in a precarious new position.

“Even churches that have not been actively engaged in the defense of marriage issue must now be vigilant in defending their freedoms of speech and religious expression.”

Obergefell v. Hodges centers around a surviving spouse in a same-sex marriage who wanted his name listed on his partner’s death certificate. The couple was from Ohio, but their marriage had been performed in Maryland. The issue involves whether a state where a same-sex marriage is not legal must recognize a marriage performed in another state. The Supreme Court subsequently joined three other lawsuits from Michigan, Kentucky and Tennessee in one case.

Framed as a Fourteenth Amendment issue, the case asks two questions: 1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex, and 2. Does the Amendment require a state to recognize marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?

But Justice Alito’s question to Solicitor General Verrilli echoed a concern churches have expressed since the marriage debate began. Verrilli’s answer “confirms with candor the threat we have long seen coming,” said Albert Mohler, president of The Southern Baptist Theological Seminary.

In inquiring about how same-sex marriage could affect religious liberty, Justice Alito referenced a 1983 case in which Bob Jones University was denied tax exempt status because it barred interracial marriage and interracial dating among its students. Will the same happen for schools that oppose same-sex marriage, Alito asked?

Verrilli said he couldn’t answer without more specifics, “but it’s certainly going to be an issue.”

In a presentation on religious liberty following the Court arguments, Washington University law professor John Inazu agreed it will indeed be an issue. He referenced a brief filed by a same-sex marriage supporter Douglas Laycock that nonetheless outlined religious liberty concerns. In the brief, Laycock, a University of Virginia law professor, posed these questions:

• Will clergy have to provide marriage counseling to same-sex couples?
• Will religious colleges be required to provide married student housing for same-sex couples?
• Will churches be required to employ people in same-sex marriages?
• Will religious organizations have to provide spousal fringe benefits for same-sex spouses?
• Will religious social service agencies have to place children for adoption with same-sex couples?

In addition, Laycock says, other organizations could be sued for refusing their facilities or services, including religious colleges, camps and retreats, day care centers, counseling centers, meeting halls, and adoption agencies.

Following the oral arguments, Russell Moore and Andrew Walker of the Ethics and Religious Liberty Commission summed up the religious liberty issue this way:

“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.”

Some observers have said the impact on churches of the Court’s ruling—likely in favor of same-sex marriage—will depend on how the decision is written and how many justices vote in favor of it. A split decision, it would appear, would give the government less authority to limit the liberty of local congregations.

Evangelical ‘winnowing’
At a May 11 meeting in Peoria, IBSA church leaders talked about how churches can respond to the changing marriage culture, and specifically how bylaws and membership policies can protect their right to practice their convictions.

“Some of our leaders have raised the concern [about same-sex marriage], and wanted to know more about how can churches protect themselves, and what are the issues as they stand now in the state of Illinois and the Supreme Court,” said Joe Gardner, an IBSA zone consultant in Metro Peoria.

As they wait for a decision for the Court, Gardner says leaders in his area are concerned about whether they will be required to allow groups that endorse same-sex marriage to use their church facilities, and how to protect themselves against lawsuits that could come with the Court’s decision. Personally, he’s concerned about how the verdict will affect Christian schools,
since his wife is superintendent of one in Peoria.

Of churches in his area, he said, “I would say we are committed to standing firm on the Scripture, and biblical teaching on marriage and home….But we don’t know what kind of challenges [will result from that stand]. So, we’re just waiting to see what kind of challenges will present themselves when we take that stand.

Because, he said, as churches, “We don’t really have a choice, do we?”

During the last several years, and increasingly more recently, churches and pastors are asking themselves that very question. Where do we stand on this? And will we stay there, even when it gets difficult?

Professor Denny Burk of Boyce College said same-sex marriage “will cause a winnowing of our ranks, and we are about to find out who will willing to follow Jesus when it gets hard.”

In a blog post on the day of the Supreme Court arguments, Burk referenced a recent CNN article about how religiously affiliated people now think about same-sex marriage. According to data from the Public Religion Research Institute in the CNN story, a majority within many religious groups favor same-sex marriage, including Jews (77%) and Catholics (60%). A
higher percentage of those groups favor same-sex marriage than the share of all Americans: 54%.

Smaller percentages of black Protestants (38%) and white evangelicals (28%) favor same-sex marriage, but young people—even Christians—are more likely to accept it. According to the PRRI research, 43% of Millennial white evangelicals are in favor of same-sex marriage. “That last number is the one that should stand out,” Burk wrote.

Even before the Court makes its decision known, many congregations are wondering how to handle less conservative views in the pews, particularly on the issue of marriage and particularly among young people. The shift makes for a “watershed moment” for Christianity, Burk said.

“As popular opinion and legal precedent move decisively in favor of gay marriage, those who call themselves Christians have a choice. They can either join the revolution or they can follow Jesus.”

Read the Illinois Baptist online at

Meredith Flynn


Meredith is managing editor of the Illinois Baptist newspaper.