by Jeff Mateer, First Liberty Institute General Counsel
Earlier this week, the United States Supreme Court heard the oral arguments in a group of consolidated cases from the U.S. Court of Appeals for the Sixth Circuit involving whether the 14th Amendment of the U.S. Constitution mandates a redefinition of marriage in all 50 states. First Liberty Institute General Counsel Jeff Mateer was at the Supreme Court for the arguments where Supreme Court Justices asked questions to both sides. Here he offers his firsthand account of the proceedings and reveals that while there is encouragement in what he heard, there are also concerns for people of faith that cannot be ignored.
On Tuesday, April 28, I had the privilege to be at the United States Supreme Court to listen to oral arguments in Obergefell v. Hodges, a group of consolidated cases that will determine the future of marriage policy in America. Importantly, the Supreme Court’s decision in these cases could have major ramifications for our religious liberty rights for years to come.
Going into the hearing, experts believed and I also felt like there was little hope for an outcome affirming the traditional view of marriage. After the arguments, however, I believe the Supreme Court Justices appear to be grappling with the issue, questioning the role of judges imposing a redefinition of marriage upon all 50 states, and taking into consideration the consequences of such decision upon the religious liberty rights of millions of Americans who hold to a Biblical view of marriage.
WHAT’S AT STAKE FOR YOUR RELIGIOUS FREEDOM
The question before the Supreme Court is not whether same-sex marriage is good public policy. Instead, the central question is whether the U.S. Constitution, specifically the 14th Amendment, mandates a redefinition of marriage in all 50 states.
Contrary to earlier decisions by three other courts of appeal (4th, 7th and 10th), the U.S. Circuit Court of Appeals for the Sixth Circuit found that the 14thAmendment does not require a mandatory redefinition of marriage and affirmed the constitutionality of laws defining marriage as only between one man and one woman in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court granted review of those decisions (having had declined review of the decisions overturning marriage laws in other states).
Earlier this month, in advance of the oral arguments, First Liberty Institute filed an important friend-of-the-court brief on behalf of scholars and religious organizations that support the First Amendment free speech rights of Christian ministers, teachers, and leaders who are compelled by faith and conscience to preach and speak aloud their millennia-old and sincerely held religious view that marriage is the sacred union of one man and one woman.
First Liberty Institute filed this brief on behalf of prominent evangelical organizations, including the National Religious Broadcasters, the Billy Graham Evangelistic Association, Samaritan’s Purse, In Touch Ministries, Pathway to Victory, The Chuck Colson Center for Christian Worldview, Dallas Theological Seminary, The Southern Baptist Theological Seminary, and Southeastern Baptist Theological Seminary, and national Christian leaders, including Dr. Daniel L. Akin, Dr. Mark L. Bailey, Dr. Francis J. Beckwith, Dr. Robert A.J. Gagnon, Dr. Robert Jeffress, Dr. Byron R. Johnson, Eric Metaxas, Dr. Albert Mohler, Jr., Dr. Charles F. Stanley, John Stonestreet and Dr. Owen Strachan.
Our brief asks the Justices to affirm the Sixth Circuit decisions upholding marriage laws in Kentucky, Michigan, Ohio and Tennessee. Moreover, in reaching its decision in this case, we ask the Court to reaffirm that the Free Speech Clause of the First Amendment protects religious dissenters who disagree with state-recognized same-sex marriage and to reaffirm the importance of free debate and free inquiry in this democratic Republic.
Our brief points out that, in the marriage debate, many people of faith – from small business owners to students, soldiers, and chaplains – have already been persecutedfor their religious beliefs about marriage. Just a few of our recent cases demonstrate this point:
· U.S. Navy Chaplain Wes Modder, who has been relieved of his duties for giving one-on-one Biblical counseling on marriage and family issues.
· Georgia Department of Public Health official Dr. Eric Walsh, who was fired from his position because of statements he made in his church, prior to his hiring, concerning marriage.
· United States Air Force Senior Master Sergeant Phillip Monk, who was relieved of his duties because he disagreed with his commander’s views on marriage.
· Sports broadcaster Craig James who was fired from Fox Sports because of his religious views concerning marriage.
DIVISION IN THE COURTROOM
Tuesday’s argument before Court, lasting over two and half hours, was lively and at some times contentious. The Court is clearly divided into two camps with Justice Kennedy again in the middle. In the early stages of the argument, Justice Kennedy revealed the importance of the issue confronting the Court:
“One of the problems is when you think about these cases you think about words or cases, and – and the word that keeps coming back to me in this case is – is millennia, plus time.
First of all, there has not been really time, so the respondents say, for the federal system to engage in this debate . . . But still, 10 years is – I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it – it’s very difficult for the Court to say, oh, well, we – we know better.”
Even Justice Breyer, one of the liberal justices on the Court, recognized that definition of marriage as the union of one man and one woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change . . .”
In an exchange with counsel for one of the same-sex couples, Chief Justice Roberts summed up the monumental nature of the issue before the Court: “My question is you’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.”
Moreover, during the course of the argument, three Justices focused upon the ramifications from a judicially-imposed redefinition of marriage on religious liberty.
First, Justice Scalia raised the issue of whether pastors would be required to perform same-sex weddings.
Second, Chief Justice Roberts asked whether religiously-affiliated colleges and universities would be mandated to provide married student housing to same-sex couples.
Third, Justice Alito inquired about tax-exempt status for religious schools if marriage is redefined.
The response by our government to the last question is the most chilling. The Solicitor General of the United States, the Obama Administration’s top lawyer at the Supreme Court, when asked by Justice Alito if religious organizations who believe that marriage is the union of husband and wife would lose their non-profit tax status, said “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.”
In the view of the attorney who speaks for the Obama Administration, with the judicial imposition of a redefinition of marriage comes the loss of non-profit status for religious organizations that continue to hold to a Biblical view of marriage. That’s alarming.
HOPE FOR THE RIGHT DECISION
Nevertheless, I am hopeful that the Supreme Court will do the right thing and allow marriage policy to be worked out through the democratic process and encourage the public debate about marriage to continue. As Americans, we have a constitutional right to speak and to act according to our beliefs. Redefining marriage by the federal judiciary will lead to the violation of religious liberty and free speech. People’s right to hold a faith-based view of marriage as the sacred union of one man and one woman should be protected.
In light of this week’s arguments at the Supreme Court, I remain optimistic that the Court will continue to protect the religious liberty and free speech rights of those who hold traditional religious views concerning marriage, recognizing the constitutional right of all Americans to speak and act according to their beliefs. A decision is expected from the Supreme Court in late June.
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About First Liberty Institute
First Liberty Institute is a nonprofit legal group dedicated to defending and restoring religious liberty across America — in our schools, for our churches, in the military and throughout the public arena. Liberty’s vision is to reestablish religious liberty in accordance with the principles of our nation’s Founders. For information, visit www.FirstLiberty.org.