The Growing Threat: Dangers Lurk from SCOTUS Marriage Decision

July 7, 2015

Despite Justice Kennedy’s affirmation of religious liberty in the recent Supreme Court marriage decision, prominent figures are already calling for the eradication of religious liberty. While such calls are a misuse of Justice Kennedy’s majority opinion, they are not unexpected. Dissenters in the SCOTUS decision expressed concerns that such fallout would occur, and experts at First Liberty Institute have long warned of the clashes we are already seeing.


Justice Kennedy stated that even though same-sex marriage is now considered a Constitutional right, the freedom to oppose same-sex marriage on religious grounds is protected. Specifically, his majority opinion reads:

“ . . . 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.”


While Justice Kennedy’s words re-affirm religious liberty, many will misuse other parts of his opinion to persecute religious organizations and individuals. First Liberty Institute and many others have warned of these abuses for months, and four dissenting Supreme Court Justices also expressed concern.

Chief Justice Roberts stated in his dissent:

“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. There is little doubt that these and similar questions will soon be before this Court.

Justice Alito said in his dissent:

“I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

First Liberty Institute CEO Kelly Shackelford expressed the same (and other) concerns earlier this year in the event of nationwide recognition of same-sex marriage:

“Here’s just some of what could be at risk:

  • Tax-exempt status will probably be attacked nationwide.
  • Christian colleges and schools accreditation will be attacked.
  • Faith-based adoption and foster care providers will be attacked.
  • Federal contractors and grantees including those with loans at religious schools will be attacked.
  • Religious staffing at faith-based organizations will be attacked.
  • Those in the military who don’t follow the new agenda will be
  • attacked.
  • Those in cities and counties, employees at all government levels will now be attacked.
  • Faith-based businesses, as we’ve already seen, will be attacked.
  • Numerous federal laws have triggers in them which will now swing into effect. This includes employment laws, housing, the Department of Labor, the Department of Education, the Federal Communications Commission, and more. All could be areas for attacking religious belief.
  • Licenses to even be in a profession will be a target. Every profession has a code of ethics banning discrimination. No matter what your profession is, be ready.”

He concluded, “This is going to be a direct attack on religious freedom everywhere in the country and no one will escape it.”

Jeff Mateer, First Liberty Institute General Counsel, said in a Glenn Beck interview on Friday after the decision:

“I think we’re going to see this play out over the next months and years as this newly-created Constitutional right clashes. . . . Look, let’s be honest, this is not going to end here. This right is going to seek to be expanded.

Unfortunately, the Supreme Court Justices, Shackelford, and Mateer were right. Just over one week has passed since the Supreme Court’s decision, and these concerns are becoming realized.


In a receny Washington Posteditorial entitled “ACLU: Why we can no longer support the federal ‘religious freedom’ law,” Louise Melling, deputy legal director for ACLU, wrote the following—before the court’s decision had even been handed down:

“. . . We can no longer support the law [Religious Freedom Restoration Act] in its current form. . . . In the states, legislators, governors and businesses are citing state religious freedom restoration acts to justify all manner of discrimination against gay men and lesbians, including at commercial establishments.”

In an editorial for entitled “Now’s the Time To End Tax Exemptions for Religious Institutions,” New York Times columnist Mark Oppenheimer advocated dismantling religious establishments of their tax-exempt status:

“Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses.”


These attacks are no indication that religious liberty in America is a lost cause. Rather, they serve to remind us the battle is just beginning. The laws in place—from the First Amendment, to RFRA, to the reaffirmation contained in Justice Kennedy’s opinion—are all on our side. If we are not careful, however, those laws will be usurped, misused, or eliminated.

What can you do? The key is being well-informed and well-prepared. Click here for First Liberty Institute’s 5-point plan—a strategy to help you fortify yourself against attacks in light of last week’s decision.

“Some people think, ‘this battle, this is the end,’” CEO Kelly Shackelford says. “This is really the very beginning of the battle, and I think it’s a battle we can win, and we will win.”

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

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

Social Facebook Social Instagram Twitter X Icon | First Liberty Institute Social Youtube Social Linkedin

Terms of UsePrivacy PolicyState DisclosuresSitemap • © 2024 Liberty Institute® is a trademark of First Liberty Institute