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Supreme Confusion

High court's approval of same-sex marriage leaves question of religious accommodation unanswered.

While the Supreme Court ordered same-sex marriages to become legal throughout the nation on Friday, much remains to be seen as to how the ruling will impact religious institutions and people with sincerely held Christian beliefs.

George O. Wood, general superintendent of the Assemblies of God, expressed grave concerns with the ruling in comments made to PE News.

"I am deeply troubled by the Supreme Court's actions today in Obergefell v. Hodges. What the Court can make legal, they cannot make moral," stated Wood. 

The 5-4 decision, written by Justice Anthony Kennedy, declares that the 14th Amendment guarantee of equal protection requires states to issue marriage licenses to same-sex couples, even if a ceremony occurred elsewhere.

Kennedy argued that homosexual and lesbian marriage is protected under the Constitution because of the fundamental right of personal choice. Marriage is a keystone to the nation's social order, whether it is heterosexual or same-sex couples, Kennedy opined. He went so far as to say that same-sex marriage "safeguards children and families" and it is "demeaning to lock same-sex couples out of a central institution" of society.

All four justices who opposed the ruling -- Chief Justice John G. Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito -- wrote separate dissents. Chief Justice John Roberts penned a 29-page dissent -- longer than Kennedy's majority opinion.

Roberts criticized the five majority justices for trying to legislatively impose their will rather than acting as judges. He noted that voters in only 11 states had passed same-sex marriage laws.

"The fundamental right to marry does not include a right to make a State change its definition of marriage," Roberts wrote. "And a State's decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational."

Roberts reacted incredulously to the court's sudden transformation of a social institution that has been confined to one man and one woman for millennia.

"Just who do we think we are?" Roberts asked.

Wood agreed with the chief justice.

"Justice Roberts correctly identified in his dissent the substantial risks today's decision holds for the faith community. The Assemblies of God will continue to remain firmly committed to the understanding of marriage between one man and one woman -- a belief founded in scripture that no court can alter."

The majority opinion only briefly acknowledges that people with deep religious beliefs against same-sex marriage may continue to "teach" and "advocate" their views.

"Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice," Roberts noted. "The majority's decision imposing same-sex marriage cannot, of course, create any such accommodations."

Roberts predicted gay rights and First Amendment religious freedoms would clash in future Supreme Court cases soon.

"Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today," Roberts wrote.

Thomas concurred in his dissent that the same-sex marriage ruling will have wide-ranging implications for religious liberty.

"It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples."

While the Supreme Court's ruling declaring same-sex marriage as a right throughout the nation likely won't force clergy to perform wedding ceremonies for homosexuals and lesbians, the decision eventually might threaten the tax-exempt status of a variety of religious institutions.

"It could have a whole host of effects," says Eric Rassbach, deputy general counsel for The Becket Fund for Religious Liberty in Washington, D.C., since 2004. "It will trigger laws that will affect different religious organizations, particularly in hiring and firing."

Threats to churches, Christian schools, or religious organizations may result from a lawsuit filed by an employee fired after marrying a person of the same gender. Christian colleges also might lose tax-exempt status for refusing to provide married housing for same-sex couples, Rassbach says.

During oral arguments on Obergefell v. Hodges in April, U.S. Solicitor General Donald Verrilli intimated that religious institutions that fail to recognize same-sex marriage could end up following the same legal consequences as Bob Jones University in 1983. After the fundamentalist school refused to end its ban on interracial marriage, the U.S. Supreme Court ruled that the Internal Revenue Service had properly stripped the institution's tax-exempt status.

"Doctrinal provisions in the governing documents of religious schools may not be enough to fend off IRS challenges to tax-exempt status if the IRS or the courts conclude that the right of same-sex couples to marry is a fundamental and compelling public policy," warns Richard Hammar, legal counsel for the Assemblies of God since 1978.

Rassbach, who co-authored an amicus curiae brief to the court on the case, encourages Christians to be proactive in pushing for legislative religious liberties protections in the wake of the ruling.

"It's not going to do any good to hope that this cultural tsunami is going to pass you by," says Rassbach, a Harvard Law School graduate.

Rassbach predicts years of litigation regarding religious liberties to result from the decision, much like the myriad court cases filed after passage of the Patient Protection and Affordable Care Act in 2010.

Hammar says previously enacted state laws and court rulings sanctioning same-sex marriage typically contained a specific religious exception for ministers.

"The exemptions say any clergy who oppose same-sex marriage based on their sincerely held religious beliefs may choose not to officiate same-sex wedding ceremonies," Hammar says.

Rassbach agrees that it's extremely unlikely that pastors will be coerced into officiating a wedding ceremony against their religious convictions.

"The First Amendment already protects pastors from having to conduct any sort of religious ceremony they disagree with," Rassbach says.

The real issue, Rassbach says, involves protecting the church as an institution when religious liberties will clash with lesbian, gay, bisexual, and transgender rights.

The AG, along with 19 other religious organizations and denominations, also submitted an amicus curiae brief to the Supreme Court before oral arguments.

There is a deep divide on same-sex marriage views based on spirituality. A recent Gallup poll found that 75 percent of those who never attend church favor same-sex marriage, while only 29 percent of those who attend weekly do so.

Image used in accordance with Creative Commons license. Photo credit: John Hilliard, Flickr


John W. Kennedy

John W. Kennedy served as news editor of AG News from its inception in 2014 until retiring in 2023. He previously spent 15 years as news editor of the Pentecostal Evangel and seven years as news editor at Christianity Today.