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Analysis: Supreme Court Ruling Legalizing Gay Marriage Threatens Religious Freedom and Right to Self-Government

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July 1, 2015

In a 5-4 decision released at the close of its term, the U.S. Supreme Court required all 50 states to recognize gay marriage – upending historic states’ rights to regulate marriage and stripping millions of Americans who voted to retain traditional marriage of their right to decide.

“All Americans deserve respect for their human dignity,” said Bishop Jaime Soto from Sacramento.” The Catholic Church has stalwartly stood by that fundamental belief while also recognizing marriage as the unique relationship between a man and a woman. 

“Unfortunately, the Supreme Court today in attempting to do the former distorted the latter.   The decision of the Supreme Court has attempted to address the issue of respect in the wrong way and has pushed the Country further down a libertarian understanding of freedom and equality,” said Bishop Soto.

The court ruled that the “liberties” protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment “extend to certain personal choices central to individual dignity and autonomy.”

In a vigorous dissent, Chief Justice John Roberts said, “The majority’s decision is an act of will, not legal judgment.”  “The right it announces has no basis in the Constitution or this Court’s precedent,” he said.

“There is indeed a process due the people on issues of this sort,” Roberts stated, “the democratic process,” which the court virtually ignored.

In 31 states, including California, voters had chosen to preserve the traditional definition of marriage, but many of these measures were overturned by federal judges.  Proposition 8, California’s 2008 ballot measure passed with 7 million votes, was overturned by a single judge.  In only eight states was same-sex marriage enacted by the legislature and, in only three, by a vote of the people. 

Now, Roberts said, “the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia….Just who do we think we are?”

The dissenting justices also issued a warning about the decision’s dangers to religious liberty. 

The decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” predicted Justice Samuel Alito.  He noted that the court, for example, compared traditional marriage laws to laws that denied equal treatment for African-Americans.  This analogy will be used despite its complete “separation from logic.”  Denying marriage on the basis of race is not the same as redefining marriage to a same-gender relationship.

But, many predict, we are now likely to see more attempts to equate opposition to gay marriage on religious grounds as an act of discrimination.

“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage,” Roberts stated.

“The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage,” he said.  The First Amendment, however, guarantees freedom to “exercise” religion.  “Ominously,” the chief justice wrote, “that is not a word the majority uses.”

The chief justice pointed to a potentially negative impact on religious colleges that provides married student housing only to opposite-sex married couples or a religious adoption agency that declines to place children with same-sex married couples.

Indeed, during the April 28 oral arguments in this case, when asked whether tax-exempt status for universities or colleges that oppose same-sex marriage could be at risk, Solicitor General Donald Verrilli responded, “I don’t deny that it is going to be an issue.”

“Unfortunately,” Roberts said, “people of faith can take no comfort” in the treatment they received from the majority in this decision.  By the majority’s account, he said, “Americans who did nothing more than follow the understanding of marriage that has existed for our entire history…have acted to ‘lock out,’ ‘disparage’…and inflict ‘dignitary wounds’ upon their gay and lesbian neighbors.”  “These apparent assaults on the character of fair minded people will have an effect, in society and in court,” the chief justice predicted.

 “We may very well see a difficult road ahead for people of faith who believe in the true definition of marriage,” Archbishop William Lori, of the Archdiocese of Baltimore and Chairman of the USCCB’s Ad Hoc Committee for Religious Liberty said in a statement on the ruling.  

While the decision “makes a nod in the direction of religious liberty but not enough of one,” he said.  “It recognizes free speech rights of religious people to speak and advocate but does not acknowledge the free exercise of religion, the right to implement church teaching and the right to follow church teaching when interacting with the broader society.” 

“Today’s decision, I believe, will give rise to many challenges and legal controversies and we will do our best to protect ourselves in terms of how we organize and run our ministries and to advocate for protections at the state and local levels,” Archbishop Lori stated.

The four justices who dissented from the opinion – Roberts, Alito, Antonin Scalia and Clarence Thomas – are Catholics.  Justices Anthony Kennedy and Sonia Sotomayor, also Catholics, voted in favor, with Kennedy authoring the ruling for the majority.

Archbishop Kurtz called upon “all people of good will to join us in proclaiming the goodness, truth, and beauty of marriage as rightly understood for millennia, and I ask all in positions of power and authority to respect the God-given freedom to seek, live by, and bear witness to the truth.”