Briefs: Relig. liberty on line in marriage cases

Baptist Press
Posted: Mar 21, 2013 5:22 PM
EDITOR'S NOTE: This is the second part in a three-part series previewing the Supreme Court's gay marriage cases, which will be heard Tuesday and Wednesday. Read part 1 in this series: If gay marriage is legalized, polygamy is next, briefs warn

WASHINGTON (BP) -- Religious liberty will suffer if gay marriage is legalized, impacting everything from Christian business owners' freedoms to parental rights and perhaps even resulting in churches losing their tax-exempt status, according to legal briefs filed with the U.S. Supreme Court by supporters of traditional marriage.

"We are not crying wolf," one of the briefs states, quoting gay marriage backers as equating racism with opposition to gay marriage. "If support for conjugal marriage is like racism, we need only ask how society treats racists. We marginalize and stigmatize them."

Baptist Press is previewing Tuesday's and Wednesday's Supreme Court oral arguments on marriage with a three-part series examining some of the core points made by traditional groups. The court will consider the constitutionality of two laws: California's Proposition 8 and a section of the federal Defense of Marriage Act (DOMA). Prop 8 is a state constitutional amendment defining marriage as between a man and a woman in California, while the DOMA section in question defines marriage in federal law in the traditional sense. If both are overturned, then gay marriage likely would be legalized in all 50 states.

The loss of religious freedoms is a recurring theme in the 30-plus briefs filed with the court supporting Prop 8 and DOMA.

One of the briefs reaches a jarring conclusion for religious institutions: If gay marriage is legalized, churches and other religious organizations that oppose gay marriage could lose their tax-exempt status. The brief points to a 1983 case, Bob Jones University v. U.S., in which the court said the IRS could revoke Bob Jones' tax-exempt status because of its policy prohibiting interracial dating and marriage. (The university since has reversed that policy.)

The Becket Fund for Religious Liberty says if gay marriage is legalized without strong conscience protections for religious groups, the tax-exempt status "could be stripped by state agencies and local governments based solely on that religious institution's conscientious objection to same-sex marriage."

"Whether the First Amendment could provide an effective defense to this kind of penalty is an open question," the Becket Fund brief reads.

A brief by the U.S. Conference of Catholic Bishops reaches a similar conclusion.

"If the Constitution were construed to require government affirmation of same-sex relationships as marriage, it would seem a short step to requiring such affirmation as a condition of receiving government contracts, participating in public programs, or being eligible for tax exemption," the Catholic brief reads.

But tax exemption is only one of many potential impacts on religious freedom if the high court redefines marriage, the briefs warn. A person's employment in a secular job could be threatened if he or she refuses to affirm gay marriage, the briefs say.

"Photographers, caterers, innkeepers, adoption agency officials, parochial school administrators, counselors, foster-care and adoption providers, and others will be forced to comply with the revisionist view or lose their jobs -- or licenses and government contracts," reads a brief signed by Harvard professor Robert P. George and two others.

A government that legalizes gay marriage "would come to see" those who support only traditional marriage "as champions of invidious discrimination," the George brief says.

The George brief provides examples:

-- In Canada, a man named "Damian Goddard was fired from his job as a sportscaster for expressing on Twitter support for" traditional marriage.

-- In Massachusetts, Catholic Charities "was forced to give up its adoption services rather than violate its principles by placing children" with same-sex couples.

-- Also in Massachusetts, public schools "began teaching students about same-sex marriage" after it was legalized there, and a federal court "ruled that parents had no right to exempt their children."

The Becket Fund noted a case in New Mexico in which a professional photographer, Elaine Huguenin, declined to take pictures at a same-sex commitment ceremony, was sued and then ordered by the state to pay nearly $7,000 in fines because her business was considered a public accommodation. The case currently is before the New Mexico Supreme Court.

Churches and religious organizations, Becket says in its brief, could face legal trouble under public accommodation laws, particularly if they rent their facilities to non-members and "serve people with different beliefs."

"Unfortunately, the more a religious organization seeks to minister to the general public (as opposed to just coreligionists), the greater the risk that the service will be regarded as a public accommodation giving rise to liability," Becket says.

A host of services provided by churches and religious organizations could be impacted, Becket says: marriage counseling, family counseling, job training programs, child care, adoption services and the use of wedding ceremony facilities.

Traditional-minded churches and religious organizations likely want to avoid the appearance of condoning gay marriage but may be forced to do so by the state, the brief says.

Religious colleges and universities that provide housing to married couples also could face legal action if they deny such housing to married gay couples, Becket warns.

"There are some limited exemptions for religious institutions, but they would not automatically cover all conflicts triggered by legal recognition of same-sex marriage -- and determining their scope would require costly litigation," Becket warns. "Similarly, state and local housing laws ban discrimination on the basis of gender, marital status, and sexual orientation -- and the religious exemptions are also limited."

Because "many of the conflicts" between gay marriage and religious liberty "can be avoided -- at least in part -- by legislative exemptions," the court should leave the issue in the hands of legislatures, the Becket brief urges.

Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook ( ) and in your email (

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