By Myron Steeves, J.D.
Dean, Trinity Law School
On June 26, the United States Supreme Court handed down its decision in Obergefell v. Hodges. This is a far-reaching case which will have a significant impact on nonprofit organizations for years to come. The following are initial impressions, with much more to come in the coming months.
First, reading the case as narrowly as possible, it means at a minimum that the courts decided just the two stated issues that were before the court: the Fourteenth Amendment to the Constitution requires that no state can deny a marriage license to two people of the same sex, and each state must recognize the same sex marriages of other states. Were this as far as the case goes, its impact would be fairly easy to assess: all states would now treat this issue the same way that many states, such as California, have been treating same sex marriage for several years. States will issue licenses to same sex couples, and to the extent that charities do not have specific relationships to their constituents in ways that marriage is a factor, there will be no noticeable change.
However, there is much in the decision that appears to indicate that the Supreme Court sees this decision as highly expansive understanding of constitutional rights that that changes the nature of justice. Much as the way the cases addressing civil rights in the 1950’s and 60’s changed the way racial discrimination was treated in court, the Supreme Court appears today to raise same sex marriage to the same level of protection. This is perhaps the most radical decision by the Court in the last 40 years. It is even more remarkable in that the Constitution directly addresses racial issues, and was amended in the Nineteenth Century specifically to provide and expand protection of racial minorities. But is silent regarding same sex marriage.
The likelihood that this case is intended to mark a dramatic alteration of marriage is implied by the Court’s development of an argument far outside the narrow issues presented to the Court. The opinion, written by Justice Kennedy and joined by the four liberal members of the Court, gave an extended discourse on how important marriage is to our nation. Four principle reasons were given for upholding the value of marriage: personal choice in marriage is inherent in individual autonomy, two-person unions are the most important bond to committed individuals, it safeguards children and families, and it is a keystone of the nation’s social order. Because of the importance of these values, the right to marriage must be extended to same sex couples as a fundamental right, according to Justice Kennedy’s argument. The Court acknowledged the relative newness of this fundamental right, which is unique among such rights. Generally, when the word “fundamental” is addressed in rights talk, it has been directed towards values of very long standing.
The impact of an expansive interpretation on charities will be that to the extent that charities address marriage at all in carrying out their missions, they must treat same sex marriages as they would treat all other marriages.
For religious organizations, including churches, the import of the case is very significant, not because of what it says, but what it does not say. The Court does not give any kind of religious exemption, and does not make any reference to the Free Exercise Clause of the First Amendment in its reading. Thus, two rights will now regularly come in conflict: The First Amendment Free Exercise Clause, and the implied fundamental right to same sex marriage in the Fourteen Amendment Due Process and Equal Protection clauses. The Court hints at a preference for the protection of same sex marriage over Free Exercise by its two very vague references to religion in the opinion. Notably, these references are linked to the importance of religion as a general value, not as a Constitutional protection. At best, the deference given to religious organizations is grounded in the right of Free Speech, not Free Exercise.
The first reference to religion, on page 19 of the slip opinion, states that the belief that same-sex marriage is wrong is sometimes based on “decent and honorable religious or philosophical premises.” But since basing the law on these grounds would disparage the choices and diminish the personhood of same sex couples, the law cannot follow those religious beliefs.
The Court’s second reference to religion on page 27 of the slip opinion, implies a First Amendment protection, but very deliberately avoids reference to the important words “free exercise.” Rather, the court addresses a First Amendment right for the religious organizations to teach the principles that are central and fulfilling to their lives and faith, and to teach their own aspirations to continue the family structure they have long revered. This is a speech liberty, not a religious liberty. And it is no more than a concession to long held beliefs, not an embracing of the possible merit to those beliefs. Religious organizations are allowed to enter into debate. No more than that. This is not a religious liberty but a speech liberty.
The Court does not address churches separately from other organizations, so the two types of charities with which we deal are treated the same here. As it stands, the Court upholds the right to teach and debate the issues, but religious organizations are not granted legal rights to exempt from laws protecting same sex marriage. Thus, for religious organizations that provide housing for married couples for example, the right to exclude same sex couples from the service appears to be unsupported. Similarly, the right to employ those, other than perhaps in teaching and persuading roles, is exposed to being possible gone.
The plain reading of the case seems to suggest a narrowing of religious liberty that is far greater than, we hope, was intended by the Court. However, we do not know of any pending cases on the Court’s calendar for the coming year that will address and give contours to what remains of religious rights in this area. The important work of determining whether there are any protections for religious charities remains to be determined in the coming days.
About the Author:
Myron Steeves practices law in Southern California as a sole practitioner, with an emphasis on advising churches and other nonprofit organizations. He has also served on the faculty of Trinity Law School since 1991, and was the Dean from 2010 until earlier this year. He continues to teach Constitutional Law, Nonprofit Law and Business Organizations. at Trinity. Myron has been a member of CLS since 1997, and has been active in the local attorney chapter, and supportive of the student ministries and Christian Legal Aid programs locally. He has been on the board of CLS since 2013, and most recently has chaired the development committee for the board. He has also contributed articles to the Journal of Christian Legal Thought. Myron has a passion for thinking Christianly about law, and helping law students and lawyers think through the implications of their faith on their profession. Myron is a graduate of Georgetown University Law Center, and has lived in California for most of his life, along with his wife Patty and daughter Ally.
The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.