After the US Supreme Court legalised and constitutionalised same-sex marriage in all 50 states last week, there’s been a lot of talk about questions of religious freedom and freedom of conscience.
How will dissenters from the new view of marriage fare in the new dispensation? Two pieces of writing, from UK Barrister Neil Addison and US journalist Jonathan Last, make for sobering reading, and their analyses are very relevant to Ireland’s future.
Addison, who specialises in religious freedom law, excerpts and analyses [1] the view of the Supreme Court Majority on the likely impact for religious freedom law in the United States, and the views of the four dissenting judges.
His conclusion is that the protection afforded to religious institutions to continue to teach that marriage is between a man and a woman is very thin. In making comparisons between same-sex marriage and interracial marriage, the Supreme court, Addison argues, is setting up a coming battle:
In Bob Jones University v. United States [2] case 461 U.S. 574 (1983) [3] the US Supreme Court decided that the First Amendment did not prevent the US Government removing the religious tax exemptions given to the religious Bob Jones University because the University prohibited interracial dating. It would be therefore be a relatively easy and lawful step for tax exemptions to be similarly removed from religions that did not endorse same-sex relationships; as Chief Justice Roberts in P27 of his dissent pointed out, this possibility has already been considered and accepted by the US Government.
Jonathan Last’s article in the Weekly Standard [4], written just before the Supreme Court’s judgment, makes a compelling case that the same-sex marriage movement will not rest with achieving its legal goal, but only when its opponents are culturally and (eventually) legally anathema.
After the Supreme Court hands down its decision in Obergefell, we’ll begin to see the contours of the new deal that has been struck by the courts, the activist groups, government, commercial elites, and everyday social justice warriors. (For a breathtaking glimpse of this interface, have a look at the case of Sweet Cakes by Melissa, the Oregon bakery that was fined $135,000 for declining to bake a cake for a lesbian wedding. You may remember that after the fine was levied, donations to help the bakers were collected on the crowdfunding site GoFundMe—until gay activists successfully pressured GoFundMe to cancel the drive. Well, documents released on June 1 show officials from the Oregon Bureau of Labor and Industries, which imposed the fine, communicating via email, text message, meetings, and the giving and receiving of donations with the gay group pushing the case.)
If a constitutional right to same-sex marriage is created, then the government will move forward to the next stage, as hinted by solicitor general Donald Verrilli during oral arguments. Asked by Justice Samuel Alito if a new gay marriage right would require religious schools either to embrace it or to lose their tax exempt status, Verrilli replied,
“You know, I—I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.”
It is going to be an issue indeed – and not just in the United States. Ministers and the Taoiseach assured voters that the rights of religious schools wouldn’t be affected by a Yes vote in the marriage referendum: now that it’s been passed, we will see soon enough how much that promise was worth.