After months of speculation, the Supreme Court of the United States has ruled that gay and lesbian couples have the right to marry in all 50 states.
Reaction to the ruling among Christians appears divided to say the least, but the decision does raise several questions about how the ruling will affect churches and church-affiliated organizations.
What the Court Said
In the majority opinion, written by Justice Anthony Kennedy, “four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” Those are:
1. “The right to personal choice regarding marriage is inherent in the concept of individual autonomy.”
2. “The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”
3. “[The right to marry] safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”
4. “Marriage is a keystone of our social order.”
According to the five-to-four majority, the 14th amendment guarantees the right to marry to same-sex couples as “part of the liberty promised” by the amendment.
RELEVANT spoke with Douglas Kmiec, professor of Constitutional Law and Caruso Family Chair in Constitutional Law at Pepperdine University’s School of Law and a former Ambassador of the United States, about what the decision means on a practical level for religious institutions.
What the Court’s Decision Means for Churches and Church-Based Organizations
“No church will be required to perform a same sex ceremony if that is believed to be contrary to their Christian or other religious perspective,” Kmiec says.
Kmiec, who also served presidents Ronald Reagan and George H.W. Bush during 1985-1989 as constitutional legal counsel, draws a parallel between that and the hiring practices of the Roman Catholic Church. Under most circumstances, organizations or companies may not legally consider gender among the qualifications of candidates.
The Catholic Church, however, believes that “Christ did not choose women for that priesthood and therefore excludes women from the priesthood,” he says. Because the Roman Catholic Church is a religious institution, the Court holds that civil rights laws contain a “ministerial exceptions.” In the same way, the government will not require churches that do not agree with same-sex marriage to uphold normal hiring standards.
But, Kmiec says, wedding ceremony officiating won’t be the “hard case.” Churches, of course, do other things. The most difficult cases, he predicts, will relate to outside and para-church ministries of churches.
For example, what happens when a faith-based school wants to hire employees who observe marriage like that school does, if that doesn’t include same sex couples? Can that school hire someone who is only married to a heterosexual person and exclude those in a same-sex marriage?
“I think the likely answer to that is going to be, ‘No,’” Kmiec says.
Churches and religious institutions and organizations receive particular tax-exempt status in the United States. Kmiec says that “no doubt,” these exemptions will come under fire, with efforts to “withdraw public subsidies, either direct or indirect, from institutions that don’t observe the principle of non-discrimination with regard to same-sex marriage.”
“I have already seen legal commentary making the argument that these tax benefits should be denied in any church or any school or any other charitable organization that does not observe same sex marriage,” he says.
What the Court’s Decision Means for Non-Church Related Religious Practice
Kmiec claims that religious belief is secure. That doesn’t mean religious practice is. He points to well-documented cases of bakers and photographers and others who provide ancillary services for weddings.
“Can they make the argument that providing the cake or providing the photographer is advancing a moral conception with which they disapprove? I think the answer to that is going to be, ‘No,’ too. Because I think what’s going happen is that most of those cases are going to be resolved on the interpretation of what gets called a public accommodation law.”
Public accommodations laws stipulate that business owners “take the public as [they] find them.” This means serving people from all stripes, races, beliefs and orientations.
Aaron Cline Hanbury is a contributing editor for RELEVANT. You can follow him on Twitter at @achanbury