By Jim Guenther
TBC Attorney
There needs to be some clarity about exactly what the Supreme Court’s decision did and did not do. The decision was about a civil right, the right of same sex couples to be licensed by the states to marry. It was an interpretation of the 14th Amendment, a citizen’s right to equal protection under the law when it comes to marriage.
It was not about religious liberty. It was not about the First Amendment and a citizen’s right to exercise his or her religious beliefs and it was not about the prohibition against government establishing religion. So the decision did nothing to diminish religious freedom.
What the decision did do is to declare a new right to marry. That decision is simply part and parcel of a cultural shift already being reflected in the law, a shift to give Lesbian, Gay, Bisexual, and Transgender (LGBT) persons rights against discrimination. That shift in the law has been and continues to be manifested in state and local government actions to add LGBT protection in employment, housing, and public accommodation discrimination laws. The shift is also manifested in interpretations of present laws, especially sex discrimination laws, which move the prohibition against sex discrimination closer to a prohibition against gender and sexual orientation discrimination, a subtle but significant development. The Supreme Court’s marriage decision is a very significant piece, but still only a piece, of these changes.
This cultural shift and its manifestation in the law, significantly including this new right to marry, create new rights which will inevitably come into conflict with religious liberty rights. It will be in those cases where the religious liberty rights of those who oppose gay marriage and who hold traditional religious beliefs about sex outside the traditional marriage relationship between two people of different sexes, and who believe one’s sex is dictated at birth, will be tested. It will be in those cases where the contours and perimeters of the First Amendment will be determined.
So religious liberty will be at issue both in the courthouses as rights and duties are interpreted, and in the houses of the legislative bodies, federal, state and local, as laws and ordinances with their rights, duties, and exemptions are hammered out. In these conflicts one should expect first amendment rights to remain healthy and robust.
