WASHINGTON — The wait for the U.S. Supreme Court to announce it is ready to provide a verdict on same-sex marriage may be near an end.
Then again, it may not.
The justices are scheduled to meet in a private conference Jan. 9, when they will consider appeals of lower-court decisions in favor of states’ rights to limit marriage to heterosexual couples. The high court could decide to grant review in one or both cases in this term.
If the Supreme Court rules on the issue this term, gay marriage could be legal throughout the country by the time it adjourns this summer. Or states could maintain their authority historically to define marriage as only between a man and a woman.
The justices’ conference will come in the context of a judicial and legislative landscape of swelling support for same-sex marriage and the civil rights of lesbian, gay, bisexual and transgender (LGBT) people. Gay marriage is now legal in 36 states — nearly tripling the 13 states where it was legal just 18 months ago — and the District of Columbia. Florida became the 36th state with legalized gay marriage Monday (Jan. 5). Cities increasingly are enacting LGBT ordinances, though there has been recent pushback. All the while, the religious liberty of Christians and others with conscientious objections is under threat.
The dramatic shift has resulted in those who believe in the biblical, traditional definition of marriage “finding themselves increasingly on the defensive in their communities and their places of work,” said Barrett Duke, vice president for public policy and research of the Ethics & Religious Liberty Commission. “We are no longer at the point of being asked only to accept same-sex marriage. We are now at the place of being pressured to affirm it. The clash between sexual liberty and religious conviction is inevitable in this environment.”
The Supreme Court will determine if that legal conflict between sexual and religious freedom will spread to the entire country. Its Jan. 9 conference involves appeals of decisions supporting states’ rights to ban gay marriage from the Sixth Circuit Court of Appeals in Cincinnati and a Louisiana federal judge. On the same date, a three-judge panel of the Fifth Circuit Court in New Orleans will hear oral arguments in the case from Louisiana and in appeals from Mississippi and Texas. The appeal of the Louisiana ruling to the high court is an effort to bypass the appeals court.
The Sixth Circuit became in November the first federal appeals court to rule states — specifically Kentucky, Michigan, Ohio and Tennessee — did not violate the U.S. Constitution by limiting marriage to the union of a man and a woman. Its decision conflicted with previous opinions by four other appeals courts.
In October, the Supreme Court had refused to review decisions by appeals courts before there was a conflict among the circuits. A lawyer for Alliance Defending Freedom (ADF), which backs the states’ authority to limit marriage to a male-female union, said she wouldn’t be surprised if the justices decided to delay action again — something she considers likely to be a positive development.
“It seems that they are waiting for this to sort of trickle out,” Kellie Fiedorek, litigation counsel for ADF, said. She expects the high court to wait on a decision from the Fifth Circuit and possibly the 11th Circuit, which consists of Alabama, Florida and Georgia.
“It might not be a bad thing to wait until next term either,” when there could be a pro-states’ rights ruling from the Fifth Circuit, she said.
Fiedorek holds out hope the Supreme Court will follow its past decisions on the issue.
The justices made it “very clear” the authority to “define marriage lies within the states and the people of those states” in their June 2013 decision invalidating part of the federal Defense of Marriage Act, she said. “So if they’re consistent with that, I think that they will uphold states’ rights yet again.”
Though the high court refused in that U.S. v. Windsor ruling to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.
“I think that a lot of decisions that we’re seeing are improperly interpreting Windsor and also failing to recognize other court precedent,” she said. “It’s really a stretch to say that it is unconstitutional to allow states to affirm marriage in the way that they’ve been defining it for years, for centuries.”
The spread of government-endorsed gay marriage requires a response by the church, Duke said.
“As the marriage landscape changes, it should be obvious to everyone that the church cannot simply sit back and let this work itself out,” he wrote in a statement. “The freedom for people of faith and their institutions to live and work in accordance with the dictates of their faith without fear of reprisal is at stake.”
Duke recommended a multi-pronged reply by the church:
• “First, we should pray that God will intervene on behalf of the church and change hearts and minds about what constitutes marriage.
• “Second, we must work to provide legal protections for people of faith and conscience.” That could start, he said, with states enacting versions of the federal Religious Freedom Restoration Act, which requires the government to have a compelling interest and to use narrow means to burden a person’s religious exercise.
• “Third, we must include clear statements in our church governing documents that express our beliefs about marriage and the conditions under which we will allow our facilities to be used. Churches should do this before they are asked to accommodate same-sex weddings to avoid accusations that they are acting out of animus toward particular individuals.
• “Fourth, we must re-engage our communities to help them understand why we oppose same-sex marriage. We have many valid reasons for our opposition, and hatred is not one of them. We should try to help our neighbors understand this.”
With the expansion of legalized, same-sex marriage, professionals who provide services for weddings have been especially vulnerable to efforts to force them to contradict their beliefs. For example, ADF is defending, or has defended, the following Christians and their businesses:
• Barronelle Stutzman, a florist in Richland, Wash., who is in court after being sued by the state attorney general and the American Civil Liberties Union for declining to arrange flowers for a same-sex wedding.
• Jack Phillips, a Lakewood, Colo., cake shop owner who has appealed to a state court a Colorado Civil Rights Commission ruling against him for refusing to make a cake for a same-sex ceremony.
• Jonathan and Elaine Huguenin, owners of a New Mexico photography business who denied a request to photograph a lesbian commitment ceremony. In April, the Supreme Court refused to review the New Mexico high court’s decision that the Huguenins had violated the state’s ban on sexual orientation discrimination.
“No one should be compelled to be a mouthpiece for the government’s ideology,” Fiedorek said of the cases. “They should be free to follow their conscience, and that means living according to their beliefs wherever they are — whether they’re at work or at home or at church.
“[T]he sad part of all of this is true tolerance would be to respect their freedom,” she said. In all such cases ADF is litigating, there are plenty of florists, bakers and photographers without conscience objections “more than willing” to provide the requested services, she said.
“It’s an unfortunate tragedy really to see these cases continuing,” Fiedorek said. “And we’re hopeful that courts will ultimately respect these fundamental rights of their First Amendment freedoms.”
The freedom of Christians and others who ascribe to a biblical sexual ethic also is imperiled by the spread of LGBT rights. Cities, and even smaller municipalities, increasingly are enacting ordinances expanding anti-discrimination protections to LGBT people in employment, housing and public accommodation, which covers hotels, restaurants and other businesses.
Opponents contend the laws often infringe upon freedom of religion and conscience for individuals, churches and businesses.
Such ordinances essentially allow governments to “pick favorites,” said Fiedorek.
“They allow the government to come into your private life or come into your business and essentially dictate what you can say or what you can think or what you can create and what you can’t,” she said.
“These laws threaten not only religious freedom, freedom of conscience, which they do, but they threaten freedom generally and the ability to live our lives, … to conduct our businesses according to our beliefs, and they ultimately threaten the diversity and … the tolerance of all viewpoints that has made America great for so long.”
Among those who have felt the brunt of local LGBT policies are:
• Atlanta Fire Chief Kelvin Cochran who was fired Jan. 6 after publishing a book in which he defended the biblical view of sexuality and described homosexual behavior as immoral.
• Blaine Anderson, a Lexington, Ky.-area, printer who is challenging an order by the county Human Rights Commission to print shirts that promote the pro-gay Lexington Pride Festival.
The city councils of Houston and Plano, Texas, are among those that approved LGBT ordinances in 2014. At one point, the Houston government even subpoenaed the sermons of pastors who opposed the ordinance as part of a lawsuit before backing down.
Some municipalities recently have refused to endorse such laws. Fayetteville, Ark., voters repealed in December a pro-homosexual/transgender ordinance after the city council had approved it in August. In October, the Berea, Ky., City Council rejected a similar law in a 5-3 vote, according to the Associated Press.
“I think passing these on the citywide, municipal level is part of the new strategy of the other side, because oftentimes they know they can’t pass it at the state level,” Fiedorek said.
“But what we’re also beginning to see [is] people are recognizing that these ordinances are not necessary … that their city was tolerant and diverse enough and they don’t need these laws that ultimately give special protection to some and take away freedom from others.”
— Tom Strode | BP