After Obergefell, Churches Are Next
The Supreme Court has ruled that same-sex marriage is a constitutional right, and there seems to be nothing to prevent the government from forcing churches to perform same-sex weddings.
In King v. Burwell, the case regarding Obamacare subsidies which hinged on what the definition of "State" is, the Court held that subsidies can be distributed by a State exchange or a federal exchange established by the Secretary of Health and Human Services (who, obviously, is not a State).
The Court's analysis in Burwell renders words meaningless. The "State" now means whatever the Court wants it to mean, whenever it wants it to mean it. Justice Antonin Scalia's delightfully scathing dissent notes the ramifications of removing the meaning of a word and assigning it a different meaning for political expediency: "Words no longer have meaning if an Exchange that is not established by a State is 'established by the State.'"
Once the Court becomes unhinged from reality, as it did in Burwell, what force is there to anchor it back where it belongs?
This brings us to the gay marriage case, Obergefell v. Hodges. Justice Anthony Kennedy's opinion is legally reckless for a number of reasons, which I will leave to actual lawyers to explain.
But one thing is certain: the religious liberty of individuals and faith-based institutions -- up to and including churches -- is now threatened in a way not present before the ruling. When the Court heard oral arguments for Obergefell in April, Solicitor General Donald Verrilli's admitted that the tax-exempt status of religious institutions "could be an issue" if same-sex marriage is recognized as a right.
Sounding very much unlike the man from Burwell, Chief Justice Roberts's Obergefell dissent lays the stakes on the table:
Today's decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is -- unlike the right imagined by the majority -- actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority's decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to "advocate" and "teach" their views of marriage. The First Amendment guarantees, however, the freedom to "exercise" religion. Ominously, that is not a word the majority uses.
How do we get from "marriage equality" to churches forced into performing weddings that violate their teachings? Lawsuits.
Imagine a same sex couple who consider themselves deeply Catholic want to get married at the Catholic church of their choice. They approach the pastor and he declines to officiate the wedding or be a party to it. The spurned couple might then file a non-discrimination lawsuit against the pastor and his parish making the simple argument that because same-sex marriage is a right protected under the Equal Protection Clause of the 14th Amendment, a parish cannot discriminate in who it weds and who it doesn't.
The religious liberty protections of the First Amendment can only hold up so long when put under the scrutiny that drove Burwell. Play some mental gymnastics a la Roberts and suddenly a centuries-old protection of religious liberty fades away. "Prohibiting" could be construed to mean "Congress can't prohibit except when..." And "free exercise" could take a similar meaning: "Churches can practice their faith freely except when..." It's not a far stretch to suggest this can happen. If Burwell happened, this can happen.
Advocates of same sex marriage have avoided discussing religious liberty protections outside of some editorials that scoff at the idea that the free exercise of religion would ever be threatened by the gay marriage movement. Ultimately, our society is one step away from the previously unthinkable stage of government-coerced marriages in churches.
Unless Congress, governors, and state legislatures act immediately, government-coerced weddings are a matter of when, not if.