Thus far, there have been three major religious freedom concerns associated with the advent of same-sex marriage, be they social or otherwise. The most frequently discussed concern is when laws require organizations and businesses to do something that they believe is wrong. A second method of silencing the religious dissenting voices is a tactic frequently used by courts by stating either that there is “no rational basis” for laws defining marriage between a man and a woman or that the sole purpose of such laws is to “demean” gays and lesbians. The third attack is thus far a social silencing of pro-marriage speech. This third attack may well become more prominent and stray into legal attacks on speech because of the logic of the first two attacks.
The first issue has been present since the beginning of the legalization of same-sex marriage as bakers, photographers and even wedding planners have faced anti-discrimination lawsuits because of their beliefs. The extent of this first attack on religious freedom has yet to be fully realized. There have been attempts to take away the tax-exempt status of the Boy Scouts. This logic could be extended. Will religious universities that rent housing to married opposite-sex couples but not married same-sex couples be tax exempt? Will the tax-exempt status be eliminated for churches? We don’t know.
The second issue facing religious freedom is best explained by the Supreme Court’s recent decision on the federal Defense of Marriage Act, United States v. Windsor. In the decision, the Supreme Court dismissed each rationale presented by the many litigators without comment other than to say the act lacked any ‘legitimate purpose.’ This led the court to conclude, as Justice Antonin Scalia summarized in dissent: “[T]he majority says that the supporters of this Act acted … with the ‘purpose’ ‘to disparage and to injure’ same-sex couples.’ ”
This impacts religious freedom because if, in enacting DOMA, Congress had a purpose to injure and demean same-sex couples, then by extension any person who believes in man-woman marriage has this purpose as well.
This problem will get worse if the same language in Windsor is used to invalidate state laws. In the first federal case to rule on a state's same-sex marriage laws since Windsor, Utah federal Judge Robert Shelby, parroting Windsor, ruled that Utah’s definition of marriage “demean[s] the dignity of [Utahn] same-sex couples for no rational reason.” Telling this demeans Utahns who voted for Amendment 3.
These two religious freedom issues will ultimately lead to a third attack becoming much larger, an attack on the right to state one’s beliefs. How is this so? If one is condemned for a belief in the public square, and is told that the belief is hate speech, it is a small step to say that the speech itself should go away. The logic will go that, given one cannot treat same-sex marriage different than opposite-sex marriage in actions in the public square and saying marriage between a man and a woman “demeans the couple,” why should speech in the public square be protected?
This third attack about religious freedom will be focused on both legal and societal pressure to change beliefs and silence speech about marriage. Most attempts thus far have been societal, such as Chick-Fil-A incidents or protests about Proposition 8. Legally, examples of attacks on belief in other countries include free speech cases. Likewise, we may have freedom of religion invasions through free speech invasions.
People will naturally respond the United States constitutional law precludes entirely this third attack, but many, many Supreme Court cases have been overturned in light of changes in society. An appeal to “settled Supreme Court precedent” is naïve without a culture that will support that precedent.
These attacks on religious freedom will continue and combine unless we change a culture about overly broad anti-discrimination laws and societal condemnation of those who support man-woman marriage.
Michael Terence Worley is a law student at Brigham Young University. He has interned with the Marriage Law Foundation and the Becket Fund for Religious Liberty.