IMAGE: CNS photo/Joshua Roberts, Reuters
By Angela Cave
NEW
YORK (CNS) — There are still unanswered questions about the legal implications
of June’s Supreme Court same-sex marriage ruling, but analysts agree religious
institutions face big challenges in the months and years to come.
The
landmark decision in Obergefell v. Hodges won’t just ensure that states cannot
deny marriage licenses to same-sex couples, said John Breen, a law professor at
Loyola University Chicago. It could also have a ripple effect on the tax-exempt
statuses of religious organizations; the rights of business owners to deny
services based on religious beliefs; the ability of religious colleges to deny
married student housing benefits; the right of religious organizations to hire
for mission; the participation of ministers in civil marriages; the right of
religious adoption agencies to decline to place children with same-sex couples;
and much more.
“It’s
not the end; it’s the beginning,” Breen told Catholic News Service. “It
will be pushed further. I have no doubt that all of these challenges are
coming.”
The
Catholic Church teaches that marriage is between a man and a woman and that sex
outside marriage is a sin. At the same time the church upholds the human
dignity of all people.
At
the time of the decision, in which a divided court found in the 14th Amendment
a fundamental right for same-sex couples to marry, Catholic bishops in dioceses
and archdioceses throughout the nation responded with great disappointment.
They objected to the court’s ability to define marriage and denounced what they
believe will be “a long-term corrosive effect on the institution of
marriage,” which they call a “well-established and divinely revealed
covenant between one man and one woman.”
Archbishop
Joseph E. Kurtz of Louisville, Kentucky, president of the U.S. bishops’
conference, called the marriage ruling “a tragic error” and he urged
Catholics to move forward with faith “in the unchanging truth about
marriage being between one man and one woman.”
He
called it “profoundly immoral and unjust for the government to declare
that two people of the same sex can constitute a marriage.”
At
their annual meeting in November, as a way to move forward in response to the
court’s ruling, the U.S. bishops announced a pastoral plan on marriage and
family to help married couples keep their relationships strong and encourage young
Catholics to marry in the church.
Archbishop
William E. Lori of Baltimore, chairman of the U.S. bishops’ Ad Hoc Committee
for Religious Liberty, said the decision’s acknowledgment of religious liberty
is too narrow. “(It) recognizes free speech, the right of religion to
teach or advocate with regard to the true definition of marriage, but it does
not acknowledge (that) the First Amendment also protects freedom of religion
and the right to follow our teaching,” he said. “(There is a)
difficult road ahead for people of faith.”
Breen,
who has a law degree from Harvard and has spoken on panels since the decision,
said proponents of traditional marriage “will be made cultural pariah.”
“It’s
really about power (and) making a group of dissenters comply,” he said of
Obergefell. “(It) neuters them, frankly, so there’s a naked public square.
We won’t have a pluralism anymore; we’ll have a hegemony. Under the banner of
tolerance, it’s intolerant.”
There’s
already a movement to withdraw or deny accreditation for religiously affiliated
colleges if they refuse benefits to same-sex married couples, Breen said,
theorizing that Catholic colleges might form their own accrediting bodies in
the future. They’ll “undoubtedly” be challenged, sued and fined for
countercultural policies, he told CNS.
Even
publicly declaring opposition to same-sex marriage could put Catholic
organizations like colleges at risk, added Daniel Mark, a law professor at
Villanova University in Pennsylvania. The 1983 Supreme Court decision in Bob
Jones University v. United States enabled the IRS to revoke the tax-exempt
status of a religious university whose policies are contrary to a compelling
government public policy, such as eradicating racial discrimination.
“This
is the obvious place where this is going,” Mark said. “I think we
should expect very direct challenges in the courts. It could happen quite soon.
Religious institutions are very dependent on this significant monetary benefit.
If they lose that, I think a lot of institutions will go under.”
More
potential issues in the educational sphere, according to Breen, include public
schools and universities banning student clubs that support traditional
marriage; an aggressive application of student speech codes that would bring up
traditional marriage supporters on hate speech charges; and mandatory education
on the validity of same-sex marriage in public schools and even in
homeschooling curriculum.
Breen
and Mark say the government can’t compel a Catholic priest to celebrate the
sacrament of marriage for a same-sex couple, but it’s only a matter of time
before the first lawsuit is filed against a parish that refuses to rent out its
church for a civil ceremony.
“There’s
a real concern here when that challenge comes,” said Mark, who has a doctorate
from Princeton. “I don’t think it will be easily won,” especially if
a parishioner is asking. Parishes could feel forced to comply “if it’s a
question of being bankrupted. The process is the punishment.”
The
next question is, “To what extent should the church withdraw from the
civil marriage business altogether?” Mark asked, adding that there’s also
a movement pushing for priests to give up their status as agents of the state.
And there’s talk of priests voluntarily doing so.
“That
would be a big loss,” Mark said. “The witness of the church to the
truth about marriage is absolutely critical for the church and for the world.”
Something
like a Knights of Columbus Hall may be compelled by state public accommodation
laws to provide space for receptions. Businesses such as those owned by photographers,
florists, bakers and caterers have already been challenged in the courts.
“The
idea is if you’re open for business, you’re open for business,” Breen
said. “We’re in a cultural movement where LGBT rights are in the
ascendency, so they’re going to be protected maybe in a way that comes before
other rights. It remains to be seen.” LGBT is the acronym for lesbian, gay,
bisexual and transgender.
Mark
said businesses “should be free to act according to their conscience, (but)
so far, the law is not on our side. I think we can make this work, but it will
depend on how aggressive the litigation is.”
The
ongoing lawsuits against the federal Health and Human Services birth control
mandate could inform future conscience protections for same-sex marriage, the
professors said. A victory for Catholic plaintiffs — most notably the Little
Sisters of the Poor and other Catholic plaintiffs whose mandate appeals cases
the Supreme Court has agreed to hear in the spring — may even drum up public
support for the House’s First Amendment Defense Act, which would prevent
federal agencies from denying a tax exemption, grant, contract, license or
certification to an individual, association or business based on their support
for traditional marriage.
But
the experts aren’t sure the bill has legs. “I don’t see the president
signing this into law,” Breen said. “He’s not a friend of religious
liberty. A lot’s riding on the current cases.
“We
live in a less religious society than we did a generation ago,” Breen
continued. “As a result of that, religious liberty is less valued. It will
be harder to make the argument.”
Further,
Breen and Mark say belonging to Catholic organizations will take more courage
in the future.
“There’s
no promise that faithfulness comes without hardship,” Mark said. The
perspective of same-sex marriage supporters “is to do with this what we
did with racism: to create such a strong social stigma that it drives it into
extinction. The fight we should be having is a fight of democracy. … The
Supreme Court should have said, ‘We appreciate your concern, but the
Constitution does not provide an answer for this question.”
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