Supreme Court's same-sex marriage ruling threatens religious liberty

The world isn’t coming to an end now that same-sex marriage is legal in all states. But the way that the U.S. Supreme Court forced this historic change on everyone is a clear, present and grave danger.

In Obergefell v. Hodges, the court unnecessarily interrupted the formation of a national consensus approving gay marriage and set the stage for unremitting, costly and fruitless battles over how the high court’s dictum should be applied.

It’s reminiscent of how Americans were forging a middle ground on abortion on demand in their state legislatures decades ago — until the high-handed high court stepped in with unchallengeable, autocratic and poorly argued decisions in Roe v. Wade and Doe v. Bolton.

So, the fight over same-sex marriage isn’t over. Not by a long shot. People on opposite ends of the argument will make sure of that.

Justice Anthony Kennedy’s majority opinion in Obergefell comes down to the argument that gay marriage is fair and good, not because it conforms to any law passed by Congress. To justify the decision, Kennedy had to twist the equal protection clause of the Constitution into an unrecognizable form that will open the door to many and fantastic claims for equality.

The Supreme Court’s job as set down in the Constitution and case law is to decide what actions are lawful. But in this overreaching decision, the Supreme Court determined that it could exclusively divine what is wise and proper, no matter what a Congress, elected by the American citizens, has determined.

In this, the court has cast its role as the Supreme Leader, like that guy running things in Iran, who can veto any government action he opposes. A pyramid with the Supreme Court sitting atop dangerously deviates from the formula of three co-equal branches of government the Constitution created.

Having taken over the question of marriage, lock, stock and barrel, the Supreme Court now will be the only body allowed to craft the compromises and settle the hair-splitting disagreements about just how the right to same-sex marriage should be applied.

An example of the most immediate issue: Just how much coercion can the government apply to force religions to bend to the will of government.

Obergefell is the beginning of an endless chain of expected challenges to religious liberty, the first of all rights enumerated in the Bill of Rights. How odd that the high court’s slightest majority found an unwritten right in the Constitution that could supersede the First Amendment’s clearly written directive that Congress shall make no law prohibiting the free exercise of religion.

The threat to religion lurking ahead was starkly revealed during oral arguments when Justice Samuel Alito asked the government’s lawyer, Solicitor General Donald Verrilli, if a religious-affiliated college that opposes same-sex marriage could lose government funding, as if it opposed interracial marriage. Verrilli’s response: “It is going to be an issue.”


That prompted the heads of more than 70 religious-affiliated schools to warn that the ruling would endanger those that adhere to “traditional religious and moral values.”

Will the tax-exempt status and government grants be cut off to schools that still respect, teach and uphold those values? What of a college that refuses to provide student housing to married same-sex couples? What of a church that refuses to rent its basement hall for a same-sex wedding reception? Numerous religious charities and hospitals could be targeted. State civil rights commissions and private lawsuits will round out the threat.

About 29,000 religiously affiliated pre-, elementary and high schools and 1,700 colleges and universities are endangered. To punish those institutions for their beliefs is a profound and momentous betrayal of the people who came to this continent hundreds of years before the Constitution was ratified seeking religious liberty.

Then there are the bakers, photographers and other small businesses that decline to provide services for same-sex weddings based on their religious beliefs. They’ve already been found guilty and punished, even though their services are widely available to same-sex couples elsewhere.

In response, Sen. Mike Lee, R-Utah, and Rep. Raul Labrador, R-Idaho, introduced the First Amendment Defense Act that would ban discriminatory government treatment — such as the withholding of government grants — against any person or institution that supports traditional marriage.

That bill would plug the loophole that Obergefell creates in the Religious Freedom Restoration Act, enacted nearly unanimously in 1993 as a response to an earlier Supreme Court case that weakened religious liberties.

Of course, if the law is enacted, the Supreme Court could always, in its infinite wisdom, kill it.

This column appeared in the Chicago Tribune.

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  • How do you define a national consensus? According to most polls a clear majority of Americans support gay marriage.

    It's odd you should argue that religion should be a defense for discrimination. So reminiscent of how Black Americans were denied fair housing, equal access to public education and service in restaurants in the segregated South.

    BTW, as to your point about religious-affiliated schools violating their moral values in accepting same-sex married partners, wouldn't that also argue for their right to reject any student based on their sexual orientation?

  • In reply to Aquinas wired:

    To compare homosexual marriage to the civil rights movement is a red herring and intellectually dishonest.

    How can you compare Bloody Sunday in Selma, Alabama to homosexual marriage? People dying in pursuit of the right to vote compared to a homosexual couple needing to pick the next business from the yellow pages?

    Intellectual dishonesty. straw man arguments. Make the article say something it never intended and then attack the assigned meaning. Attack the author instead of his arguments. The timer is are running out of time to call the author a Nazi.

    Here is the fundamental question: does a church or a pastor have the right to not marry a same sex couple as afforded by the first amendment?

  • Let's remember that the first amendment's protections are aimed at protecting individual rights from government actions. Yes, religions can discriminate, and they do it all the time--e.g. preferred treatment for believers, refusal by the Catholic church to give communion to divorced people, etc.

    In my church, all would be and are accepted, according to Christ's teachings. And those that reject admission to gays are not following Christ's teachings. Likewise, government is not obliged to do any favors for such churches, but the caselaw about keeping tax exemptions from such churches (and their schools) for example is complicated, very much so. (See )

    As wrong as it can be, churches do have a right under the constitution to discriminate. But that's quite a bit different than a law that would, say, create "separate by equal" schools for gay children, or children of gay parents. As loathsome as your example would be, it's still legal. At least for now.

    The column wasn't so much about gay marriage as it was about the way the supreme court arrived at its decision. It comes terribly close to making law (as it did in roe and doe) and making laws by edict can only lead to more divisiveness. Even though I'm still opposed to same-sex marriage, I (and many others) are perfectly willing to accept the decision of legislators on the matter, which increasing are supporting it.

  • In reply to Dennis Byrne:

    You didn't address the first question. Nor my last point.

    BTW, is this what you say to your gay friends?

  • It is hard to see any difference between the Obergefell decision and the 1967 decision in Loving v. Virginia. In Loving the State of Virginia refused to recognize interracial marriages. No language in the Constitution gives a right to marry between races. When the Constitution and, in 1868, the 14th Amendment were adopted, state laws prohibiting such marriages were common. Nevertheless, the Supreme Court held that such laws violate due process of law. Religious objections were raised then too, and some claimed that this created a threat to freedom of religion. I think few today see Loving as a blow to religious freedom. The churches that object to it are free to refuse to perform such weddings, just as they remain free to refuse to perform same sex ones. Whether states and the federal government may condition the gifts of taxpayers' money or benefits on the recognition of same-sex or interracial marriage become an entirely separate issue.

  • This decision isn't going to change how the government deals with churches. Let's remember that the Roman Catholic Church doesn't ordain women or married men. Yet, the government is prohibited from trying to enforce employment discrimination laws against the church. Further, the Roman Catholic Church will not perform a wedding ceremony for a couple, if one person is divorced. In the era of no-fault divorce, or for a person who can't afford the cost of a Catholic annulment, that's a fairly extreme view. Yet, the government can't force the Church to marry divorced persons.

    Will there be people, who believe that Jesus loves everyone, regardless of sexual orientation, that want the government to enforce the view of a liberal Protestant denomination on the Roman Catholic Church and evangelical denominations, by taking churches, hospitals, and schools to court for discrimination.

    Of course.

    But, that has about as much chance as a student who wants Wheaton College to get rid of its prohibition against dancing.

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