POST-SUPREME COURT MARRIAGE DECISION: Where Do People of Faith Go from Here?

July 10, 2015

To help those who will face persecution for their religious beliefs, First Liberty Institute’s 5-point legal strategy paves the way of protection for churches, ministries, faith-based schools and businesses . . .

Late last month, the Supreme Court issued its 5-4 decision in the case of Obergefell v. Hodges.  In the midst of all the coverage of this case, people of faith may have missed the silver lining in 103-pages of the opinion: All nine Supreme Court Justices recognized the vital role of religious liberty.

From the majority opinion, Justice Anthony Kennedy wrote:

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. . . .”

Dissenter Chief Justice John G. Roberts reminded that the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. . . . There is little doubt that these and similar questions will soon be before this Court.” And in Justice Clarence Thomas’s dissent he chastises the majority for not allowing “the definition of marriage to be left to the political process—as the Constitution requires” and asserts that “the majority’s decision short-circuits that process with potentially ruinous consequences for religious liberty.”


First Liberty Institute General Counsel Jeff Mateer explains that while the Court did what was asked in the non-profit legal firm’s friend-of-the-court brief— to choose the path that “protects religious dissenters who disagree with same-sex marriage and . . . reaffirm[s] the importance of free debate and free inquiry in this democratic Republic”—we now have two fundamental rights.

 “The Court’s decision recognized that there’s a fundamental right to same-sex marriage,” Mateer says. “And at the same time, we have a First Amendment that does protect religious liberty and does protect free speech.We will see that play out over the next months or perhaps over the next years, as those two rights clash.”

That’s why First Liberty Institute has developed a 5-point legal strategy to deal with the post-Obergefell America that is now upon us. “This is not the end,” First Liberty Institute President & CEO Kelly Shackelford said in a special video where he explained the strategy for First Liberty Institute friends and supporters this week. “This is the very beginning of the battle for religious freedom, andit’s a battle we can win.”

First Liberty Institute plans to take winning legal action with the following response strategy:

1.     Focus on the Courts. Elections are important. But right now, the attacks on religious liberty are moving too fast for an election to fix—and this will get worse if the Supreme Court imposes a national redefinition of marriage. We have won these key battles before and we must continue to win for religious freedom in court. And it must happen immediately.

Our most current victories for religious freedom include:

2.     Use Existing Laws to Keep Winning.First Liberty Institute litigators have a 90%-plus win rate, even in tough cases. We know how to use existing laws and court precedents to win legal cases—laws like the Civil Rights Act of 1964, the Religious Freedom Restoration Act (RFRA), U.S. military regulations, and numerous court precedents are on our side. The Court’s marriage ruling does not change the truth that Americans have a constitutional right to speak and to act according to our beliefs.

In light of the Supreme Court’s ruling on marriage last week, First Liberty Institute has also heard from numerous government employees—including county clerks, justices of the peace, and others—who have questions about their conscience rights and are seeking advice and assurance of the First Amendment’s protections of their sincerely-held religious beliefs. 

Other recent legal matters in which First Liberty Institute has used existing laws include in defending and restoring religious liberty for people facing persecution because of their faith include:

  • Lance Corporal (LCpl) Monifa Sterling, who was court-martialed for displaying a Bible verse in her personal workspace.
  • U.S. Navy Chaplain Wes Modder, who’s facing career-ending punishment for expressing his traditional, Biblical views in answer to a very small number of military personnel’s questions about faith, family, and marriage during private counseling sessions.
  • Dr. Eric Walsh, who was fired by the State of Georgia Department of Public Health for his religious beliefs he had expressed in church.

3.     Use New Laws to Win. Our attorneys are advising several state legislatures and the U.S. Congress to make sure a plethora of new religious freedom laws are written in language that will withstand legal challenges. These laws will make it easier to win in court.

Recent legislation First Liberty Institute has played a role in include:

  • North Carolina’s law– asserts magistrates, assistant registers of deeds, and deputy registers of deeds may not be removed from their positions for declining to officiate or issue marriage licenses if doing so would require them to violate their religious beliefs.
  • Michigan’s law (HB 4188, HB 4189, HB 4190) – protects the rights of faith-based adoption and foster care agencies in the state to operate according to their religious beliefs.
  • Texas Pastor Protection Act– ensures that pastors and churches may not be forced to perform a marriage or related ceremony that would violate their sincerely held religious beliefs; pastors and churches are safeguarded from having to live in fear that the government will force them to perform marriages that violate their religious beliefs; and the rights of pastors and churches are respected to hold the biblical view of marriage.

In all, First Liberty Institute attorneys have advised 13 states and the U.S. Congress regarding how new legislation should be worded to withstand legal challenges by opponents of religious freedom.

4.     Use Religious Liberty Audits to Protect Churches, Ministries, and Businesses. First Liberty Institute attorneys are employing Religious Liberty Audits to enhance legal protection for faith-based organizations that are vulnerable to attack by litigious individuals and organizations that are offended by traditional religious viewpoints and seeking to litigate employment or discrimination claims in furtherance of a larger political or cultural agenda. These audits analyze an organization’s documents and practices, and then offer revisions to protect the organization from the new brand of “sexual liberty” attacks that can cripple the ability to minister.

A sampling of the the large number of national and state faith-based organizations First Liberty Institute is currently helping include:

  • Churches
  • Adoption agencies
  • Educational institutions
  • Ministries

5.     Expand Our Winning Formula. First Liberty Institute wins. But now we must expand to meet the multiplied challenges of new hostility to religious freedom. One First Liberty Institute staff lawyer can coordinate up to 20 volunteer litigators across the nation. We select strategic cases to create a ripple effect of freedom. We plan to add staff lawyers to expand the victims of unlawful religious discrimination we can help.

Our most recent staff attorney additions include:

  • Chelsey Youman, Esq., Counsel for First Liberty Institute
  • Cleve Doty, Esq., Counsel for First Liberty Institute
  • Matthew Kacsmaryk, Esq., Deputy General Counsel and Managing Director of Direct Litigation, Research, and Education


In his interview with Todd Starnes on FOX Nation’s The Dispatch w/Todd Starnes this past Monday, Kelly Shackelford encouraged people of faith to be diligent, stay the course, and continue the fight to keep our freedoms.

“It’s true that this decision has opened up what will undoubtedly be attacks on religious freedom in numerous areas,” Shackelford said. “But the good news is that decision last Friday did not overrule the First Amendment, and the First Amendment protects people and their free speech and their free exercise of religion.”

“The very reason this country was founded was so people could actually dissent or maybe disagree with the government’s position. That’s why people came on boats to found this country. Our Constitution protects that, and we’re just going to have to fight these things out. . . . If we’re diligent in doing that, we can win and keep those freedoms.”

Please click here if you would like to give a donation to help defend and restore religious freedom.

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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

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