Monday, June 29, 2015

What the Supreme Court Did Not Say

As if what the Supreme Court said last week in its same-sex marriage ruling is not alarming enough for those concerned about freedom of religion, what it did not say is downright chilling.  Note well this passage from Justice Kennedy’s majority opinion:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

Well, how gracious is Our Overlord Kennedy that he allows us backwards bigots Christians to “advocate” and “teach” against gay marriage.

But - and I pray this does not bring upon this humble subject the wrath of Our Overlord - there is something he did not say.  Kennedy said nothing about protecting the practice of freedom of religion, particularly about refusing to participate in a gay marriage.  And that when the above passage was an obvious opportunity so to do.

Oh, but you can “advocate” and complain all you want about your subjugation, bigots . . . for now.

It at least used to be in the United States that you (with narrow exceptions) had the constitutionally protected freedom to practice one’s religion.  Will it be so in the very near future?

Justice Roberts noticed Kennedy’s omission as well.

The majority graciously [Snicker – Ed.] suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

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—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

That is a lawyerly understatement. 

More can be said and will be said as attacks on freedom of religion inevitably increase.  But mark what the Supreme Court majority did not say and prepare.

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