Gay Marriage Will Affect Your Life: 9 Things You Need to Know
Will gay marriage affect you? If you did not support the Supreme Court’s decision in Obergefell v. Hodges for religious reasons there’s a good chance that it will.
In the days since the case was decided, a popular line has been that gay marriage won’t affect you unless you’re planning to get one.
Those who pass along this (admittedly amusing) line, may not have been paying attention during during oral arguments for the case. One of the Supreme Court justices asked Donald Verrilli, who [pull_quote_right]”[Religious Freedom] is going to be an issue”[/pull_quote_right]was arguing to legalize same-sex marriage, about potential religious freedom concerns. Verrilli responded, “It is going to be an issue.”
In fact, each of the Supreme Court justices signed onto an opinion that discussed religious freedom as a concern, including the majority opinion.
Latter-day Saints who supported same-sex marriage and those who opposed it can recognize that there are legitimate religious freedom concerns that now must be addressed. Hopefully we can unite in protecting the religious freedoms of Latter-day Saints.
What Religious Freedoms Do I Not Need to Worry About?
Just because there are some valid religious freedom concerns, does not mean that every worst case scenario that has been floated in the last several days is likely to happen. Here are some potential issues, about which you or the Church may not need to worry.
Hate Speech Legislation
In the years since same-sex marriage laws passed in Canada, many opponents have found themselves in legal trouble for vocally opposing homosexuality. While this certainly presents civil rights concerns in Canada, similar laws are unlikely to find their way to the United States.
In 2011, the Supreme Court found in Snyder v. Phelps that even outrageous speech is protected from claims of emotional distress.
And while many have expressed concerns that the majority opinion in Obergefell v. Hodges did not do enough to protect religious freedom rights, Anthony Kennedy, who wrote the opinion, explicitly said, “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.”
Freedom of speech has a much stronger effect on American law than Canadian law, so the explicit legal prohibition of speech opposed to same-sex marriage is extremely unlikely in the short term.
Adoption
Religious organizations run many adoption agencies in the United States and most believe children are entitled to a mother and father. Laws that protect these agencies are already being taken to court.
[pull_quote_left]”Freedom of speech has a much stronger effect on American law than Canadian law.”[/pull_quote_left]This will be a major issue for many of our religious friends and allies of other faiths, but fortunately for Latter-day Saints, this should not be a problem.
In June of 2014, LDS Family Services announced that they were refocusing their efforts on counseling and were consequently no longer operating an adoption agency. The Church later announced a partnership with Adoption.com that will allow church members the same kinds of adoption services they had previously, but under the umbrella of a large company.
These changes should protect the Church from lawsuits, and members from having to act against their conscience in areas of adoption.
Use of Church Property
As long as eight years ago, a seaside retreat owned by the Methodist Church was sued, because they would not rent out the space for a same-sex wedding.
Many are concerned that similar cases may arise across the country. Fortunately, the Church does not raise funds by renting out its property. Because of this, local meetinghouses, temples, and even church-owned green spaces or pavilions cannot be sued for declining to provide public accommodations.
There is an exception. The Lion House and Joseph Smith Memorial Building at Temple Square do rent out their facilities. In balancing religious rights, the Supreme Court has shown deference to the states. Utah recently passed a law that allows churches the right to use their property as they see fit.
For the Church to be coerced into renting their property for same-sex marriage, there would need to be several Supreme Court precedents overturned. It’s not entirely inconceivable that it could eventually happen, but it would be a decades-long-process before this issue would affect the Church.
What Religious Freedoms Do I Need to Worry About Now?
The ruling in favor of same-sex marriage created immediate effects, some of which you may have already experienced. There are also legal ramifications that are likely to happen if not immediately, at least in the near future.
The decision to legalize same-sex marriage comes from the first section of the fourteenth amendment which reads,”No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
The court found that if states gave legal benefits to heterosexual marriages in order to provide “equal protection” they would have to give the same benefits to homosexual marriages.
The basis for religious freedom comes from the first amendment, which protects the “free exercise” of religion.
What happens when the government’s attempts to provide homosexual marriages require citizens to violate their religious belief? Do the rights of the fourteenth or the rights of the first amendment win out? How that balance is determined is the major cause for short-term legal concern. [pull_quote_right]”Facing persecution for standing up for truth is not new to disciples of Christ, or Latter-day Saints.”[/pull_quote_right]
Below are the nine ways that the same-sex marriage ruling will, or could eventually, affect you.
1) Missionary Opportunities
Throughout the legal battles over same-sex marriage, The Church of Jesus Christ of Latter-day Saints provided an example of kindness and civility while not negotiating on its core values.
Many Americans feel disoriented from the Supreme Court’s ruling on same-sex marriage. They are seeking for a moral bedrock. For better or worse, the Church has become an important figure in this debate, and there will be many who will feel attracted to its Christ-like example.
As this case opens opportunities for discussions with friends and acquaintances, remember that what has been attractive about the Church’s response is not only its consistency, but it’s compassion, tact, and charity.
Also, this ruling has had the effect of making many gays and lesbians feel normalized and a part of their community. Some gay and lesbian Latter-day Saints may want to return to their wards or branches. If they feel welcome, they may begin to find a path toward personal peace through keeping the commandments.
Our role as members is to provide the invitations and the welcome.
2) Retaliation for Your Beliefs
Conversations about same-sex marriage have dominated social media over the last week. Those who supported the losing side of the verdict have faced taunting, bullying and worse, sometimes by their fellow Latter-day Saints.
Retaliation may grow stronger. Brendan Eich who supported traditional marriage laws in California was blackballed by the tech community until he was forced to resign from his position as CEO of Mozilla, a company he helped found. Other Latter-day Saints similarly lost their jobs.
While free speech is protected by the US constitution, there is nothing protecting Latter-day Saints from the personal responses of others.
This aggression comes from those who feel that disagreeing with same-sex marriage attacked them personally. Maintaining kindness and respect to everyone should help them see this is not the case. We certainly must be careful that we don’t respond with similar taunting or bullying.
That may not be enough, however; Eich by all accounts was exceedingly fair to employees of all sexual orientations.
If the retaliation you face is limited to Facebook, you can probably blow it off. If it is more substantial, remember that facing persecution for standing up for truth while the law turns a blind eye is not new to disciples of Christ, or Latter-day Saints.
Some Latter-day Saints have taken a political position on gay marriage that is at odds with the Church’s position. If you are among that group and have used the recent victory to taunt or belittle members who chose to hold the Church’s position, you should reconsider your actions.
3) Government Employees
There are some government employees whose jobs will now require assisting same-sex marriages in some capacity. Those who feel that they cannot perform these duties with a good conscience may have a few options. One Texas County Clerk rearranged how work is managed in the office so that those with religious objections will not be coerced into providing the licenses.
Counties in other states, such as Kentucky, are refusing to issue same-sex marriage licenses based on religious objections. Many legal scholars agree that this will likely result in another round of litigation.
Recent Supreme Court cases such as Equal Employment Opportunity Commission v. Abercrombie and Fitch have found that employers have an obligation to make reasonable accommodations for their employees’ religious beliefs. Which may give hope for some government employees who feel uncomfortable issuing marriage licenses.
The Obergefell case, however, found that there is a constitutional right to same-sex marriage, and the government has an obligation to protect that right. It remains an open question how the courts may balance those two rights.
4) Business Owners
Perhaps the most contentious issue currently surrounding LGBT rights is whether or not business owners can decline to provide services that would help support or celebrate gay marriage.
As an example, if you ran a cake shop, and your local GLAAD organization asked you to make a cake that said, “Support same-sex marriage” could you turn that job down?
[pull_quote_left]”Legal scholars agree this will result in another round of litigation.”[/pull_quote_left]The legal issues surrounding this are complicated and largely center on the strength of the “free exercise” clause of the first amendment.
There are currently two different rules for interpreting that part of the first amendment in the United States. The first, called the neutral standard, came from a 1990 Supreme Court case. They found that as long as a law applies equally to all religious people, it is legal.
Congress responded by passing the Religious Freedom Restoration Act (RFRA), this established what is called “strict scrutiny” that says a law that prohibits religious behavior is only legal if it meets a compelling government interest and there is no less burdensome way to reach that goal.
But the Supreme Court found that the RFRA does not apply to states, so a state or city could pass a law that restricts religion more than that. In response, many states passed their own RFRA. Currently, twenty states have their own RFRA bills. While thirteen states’ constitutions require them to act based on the strict scrutiny standard. The other seventeen states only have to meet the neutral standard.
Most observers agree that based on current law and precedent, the example of the baker asked to violate her conscience would not have to make the cake in states where strict scrutiny applies, but would be coerced into baking the cake in states where the neutral standard applies. That is why new RFRA bills such as those in Indiana and Arizona have been so controversial.
In Oregon, one of the seventeen states that use the neutral standard, a baker was fined $135,000 for declining to bake a cake for a same-sex wedding. Similar cases are sprouting up around the country.
There are currently religious individuals in the United States being coerced by the government to violate their religion or lose their job. This can now spread into additional states under the recent Supreme Court ruling.
There may be potential workarounds, such as partnering with a business who will provide services for gay marriages that you are not willing to, but whether those approaches will stand up in court is still unknown.
5) Public Schools
Religious influences in public schools have consistently lost in front of the Supreme Court. Teaching morality in public schools is against the law. Now that same-sex marriage is legally allowed, will that affect how family, marriage, and sexuality is taught in public schools?
To the best of my research, I can find no legal precedent that could successfully allow a public school to address those subjects from a strictly heterosexual point of view in light of the Supreme Court’s ruling.
That said, most control for school curricula and methods still come from states and local school districts.
Sexuality is often covered in a series of classes through grade school and high school, but in most areas students can be exempted. In some cases, however, curriculum about homosexuality is being moved from departments where parents can exempt their children, to departments where they cannot be exempted.
For instance, a school in Virginia moved its sexuality education from “sex ed” to “health.” Parents were able to opt-out their children when instruction was in the sex-ed department, but there is no opt-out from health education.
These units could be changed very quickly, so it’s important that you engage with local school officials and be aware of what is in your children’s curriculum.
6) Tax Exemptions
Even as recently as a few weeks ago, many commentators would have agreed that changes to tax exemption laws were a possible but long-term ramifications. I’ve included it here as a short-term issue for two reasons.
First, the issue has become a prominent part of the national conversation. Time Magazine, one of the largest and most influential in the country, published an editorial calling for churches to pay taxes.
Second, revoking an organization’s tax-exempt status does not require a legislature or court to act, but can be decided by IRS accountants, or the President who runs the executive branch of government.[pull_quote_right]”History has consistently shown that landmark Supreme Court rulings often have long-lasting and sometimes unintended effects.”[/pull_quote_right]
If a decision was made to revoke tax-exempt status, in theory, it could happen overnight. Court cases would likely result, but whether or not institutions would have to pay taxes in the mean time would be decided by individual judges.
The major precedent is the case Bob Jones University v. United States. Bob Jones University would not allow interracial marriage. The IRS decided that protecting interracial marriage was a “fundamental national policy,” and to enact that policy took away Bob Jones’ tax exempt status. The Supreme Court ruled in favor of the IRS.
Now that same-sex marriage has been ruled as a constitutional right, the IRS could protect it as a “fundamental national policy” by revoking the tax exempt status of universities that do not allow it.
Institutions such as BYU that may choose not to admit students in a same-sex marriage, or who provide housing for married students but exclude those in same-sex marriages may find their tax exempt status revoked. And according to the precedent set in Bob Jones University v. United States, the IRS would be in their legal right to do so.
What May I Need to Worry About Later?
The Supreme Court’s gay marriage ruling will have long-lasting ramifications. Some of these concerns may not be immediately realized, and some may even require intermediate steps before these effects could occur. Critics may characterize this as a slippery slope argument. But history has consistently shown that landmark Supreme Court rulings often have long-lasting and sometimes unintended effects.
There are also legitimate concerns about how quickly same-sex marriage became a reality. President Obama was opposed to the legalization of same-sex marriage only three years before decorating the White House in rainbow lights in celebration.
Some who have seen such a rapid evolution on this issue realistically wonder, what will be the next issue that seems totally unacceptable today only to be rapidly accepted.
7) Viability of BYU
Because BYU provides a service that is available to the public, it is vulnerable to potential problems that the rest of the Church is not. The first and most pressing of these potential issues is its tax-exempt status as outlined above.
Other potential issues include both accreditation and the receipt of Pell Grants for its students.
As early as 2001, the American Psychological Association (APA) threatened to withhold their accreditation from religious schools with psychology programs that opposed sex outside of marriage and homosexuality. But the APA backed off of their threat.
Then earlier this year, one of the primary college accrediting agencies threatened Gordon College, a Christian college just outside of Boston, that if they did not change their policy which prohibited sex outside of marriage, and same-sex marriage, their accreditation may be revoked. They have until February 2016 to comply.
The Becket Fund for Religious Liberty predicts that the legalization of same-sex marriage will embolden similar efforts across the country.
Losing accreditation could hurt BYU’s reputation with employers, but the school could continue to operate.
Students who attended BYU, however, would not qualify for federal Pell Grants, or federally subsidized loans, a major source of financing school expenses.
If BYU were to lose accreditation, students transferring out would also not have their credits recognized by most other universities.
Though, BYU’s expenses are already very reasonable for Church members, the combination of these problems would act to limit the University’s ability to fulfill it’s mission.
Currently, accreditation agencies act independently. So there is little regulating their behavior. They can be very difficult to predict. But the Northwest Accreditation Commission, which is the regional accreditation body for both BYU and BYU-Idaho, has no history of tying accreditation decisions to political motivations.
8) Pedophilia
Anthony Kennedy concludes in his majority opinion in the gay marriage case that the constitution requires dignity in the form of a sexual union for those with an immutable sexual nature. His reasoning could be used to legalize pedophilia.
The Harvard Health Publications editorial team wrote, “Pedophilia is a sexual orientation and unlikely to change.” And the most recent diagnostic manual for medical professionals also removed sexual feelings for minors as a psychiatric disorder.
Defining pedophilia as a sexual orientation could categorize it as “immutable” for legal purposes. So while gay marriage and pedophilia may not have anything in common at first glance, it could be the logic in the Supreme Court’s gay marriage case that could advance the legalization of pedophilia.
In fact, political organizations have already been formed to campaign for the legalization of pedophilia.
[pull_quote_left]”In these cases the process could be the punishment”[/pull_quote_left]In the immediate future, pedophilia cannot be legalized because of laws surrounding sexual consent. However, unlike gender, which is an essential attribute of sexuality, the age of consent is arbitrary, and some have already called for its change.
There is nothing essential that makes an eighteen year old more capable of sexual consent than a seventeen year old, for example. But, this is not likely to be changed in the near future. Statutory rape laws in the United States have remained relatively consistent since the industrial revolution.
9) Forcing the Church to Perform Same-sex Marriages
Could it be possible that the government could coerce the Church to perform a same-sex wedding?
Almost immediately after Great Britain legalized same-sex marriage, two men sued the Church of England in order to be married in their local church.
But British law about religious freedom is more complicated. The Church of England is a state sponsored church, and citizens have the right to be married in their local church. So this kind of suit would likely not fare well in the United States. Even in England, the Prime Minister has promised churches would not be required to perform same-sex weddings.
Two pastors in Idaho recently filed an injunction to prevent that state from forcing them to perform gay weddings, which they believed the new law would require them to do.
Importantly, these pastors run a for-profit wedding chapel, so the outcome of their suit would have no direct effect on the Church. Still, if they were to lose their lawsuit, it would create a precedent for coercing religious officials into acting as agents of the state.
While the United States’ government is very unlikely to coerce a religious official to perform a same-sex wedding, this will not prevent individuals from suing. And in these cases the process could be the punishment.
Putting up with years of legal battles, even for a favorable ruling, could be enough to destroy some smaller churches. Fortunately, The Church of Jesus Christ of Latter-day Saints is not in that position.
To be clear, before the Church could be coerced into performing gay marriages, several court cases would need to be found against religious freedom, bucking the current trend in favor of religious freedom. And many substantial protections for religious actors would need to be discarded.
Forcing churches to marry same-sex couples may be a legitimate concern for the first time, but it is not a concern for the near future.
What Comes Next?
Many Latter-day Saints have been working across the United States to protect heterosexual marriage for more than a decade. For many, the recent Supreme Court decision feels like a major defeat—that all of their time and effort were wasted. There may even be a temptation to give up, to cloister ourselves and our families off from the world and stop trying.
For other Latter-day Saints who have been advocating for the government recognition of same-sex marriage, there can be a feeling of relief, as though the the hard work is over.
I hope that the potential side effects still to come are enough to convince all Latter-day Saints, no matter how they felt about the decision, that action is necessary to deal with the ramifications of the Supreme Court decision. There are major issues for religious freedom that are now up for public debate, and which could have major effects on our families.
End of Days
Some have suggested that the legalization of gay marriage is simply part of the last days, a partial fulfillment of Paul’s prophecy, “In the last days perilous times shall come. For men shall be . . . without natural affection . . . lovers of pleasures more than lovers of God.”
Michael J. Davidson, writing for the Millennial Star, points out that families with same-sex couples at their head frustrate the plan of salvation in a way few other things could. “Up until the last few years, pretty much every civil marriage had the potential of growing into a temple sealing at some future time, either in this life or the next. These newly recognized marriages do not have that potential.”
So while the legal effects of the decision may be troubling, the eternal effects could be worse.
In a 1978 BYU devotional, Elder Neal A. Maxwell spoke about our time. He said that many will be “condescending toward those who hold to traditional Judeo-Christian values,” and that “Concern over the institution of the family will be viewed as untrendy and unenlightened.”
In the conversation surrounding the legalization of gay marriage, this kind of rhetoric has been very prevalent. And it can be difficult to be viewed by those who we respect as “unenlightened.” But Latter-day Saints are at a position where they must make a decision.
Elder Maxwell continued, “Make no mistake about it, brothers and sisters; in the months and years ahead, events will require of each member that he or she decide whether or not he or she will follow the First Presidency. Members will find it more difficult to halt longer between two opinions (see 1 Kings 18:21).”
As Latter-day Saints, the best way we can respond to the Supreme Court’s ruling is by recommitting ourselves to God, our families, and the Church.[quote_box_right]”By working together, we may be better able to protect the freedom of everyone.”[/quote_box_right]
Elder Maxwell concluded, “Before the ultimate victory of the forces of righteousness, some skirmishes will be lost. Even these, however, must leave a record so that the choices before the people are clear and let others do as they will in the face of prophetic counsel.”
Latter-day Saints understand that the world is accelerating toward the second coming of Christ; we do not need to be alarmed or startled as signs of that coming, even discouraging ones, come to fruition.
How Can I Help?
Many Latter-day Saints are energized by the decision and want to know how they can direct their efforts.
In a piece for Meridian Magazine, Scot Proctor wrote about ten things you can do in the face of same-sex marriage. In his piece, he focused on continuing to affirm the truth about the eternal nature of the family and refocusing our spiritual efforts through prayer and scripture study.[pull_quote_right]”While the legal effects of the decision may be troubling, the eternal effects could be worse.”[/pull_quote_right]
These are probably the most important things we can do. I’ve focused my responses, then, on the types of political actions that could help prevent the potential problems outlined above.
Obviously not all Latter-day Saints will or should agree on the same political solutions. But all Latter-day Saints can agree on wanting to preserve religious liberty for all, so whichever solutions you find persuasive, you should help pursue.
While large majorities of Americans now support the legalization of same-sex marriage, an Associated Press poll in January found that 57% of Americans believed that the owners of wedding related businesses should be able to follow their religious faith.
So there is popular support for religious freedom. Now may be the time to work with our fellow citizens to protect those freedoms in the law.
Support Non-Discrimination Laws for Gays & Lesbians
While Latter-day Saints are rightfully concerned that they may potentially lose their jobs or businesses as retaliation for their beliefs, in 27 states gays and lesbians, have no legal protections of any kind. They could be fired or kicked out of their homes at any moment simply for their sexual identity.
If we seek to protect ourselves from those kinds of problems, we would do well to offer similar protections to our neighbors. Utah recently passed a landmark law that helped protect religious freedoms across the state. They accomplished this by coupling the law with broad protections for LGBT individuals.
You can look at the status of LGBT protections on a state by state basis in the map below:
By working together, we may be able to better protect the freedom of everyone.
Religious Freedom Restoration Act
As mentioned above, Religious Freedom Restoration Acts can have a powerful effect on preserving the freedom of religious exercise. If you live in a state that do not have one, you can consider petitioning your local state legislator to introduce a bill in your state.
There are no states that are currently considering a bill of this kind.
First Amendment Defense Act
The First Amendment Defense Act was introduced just a few weeks before the Supreme Court’s decision. The bill would prevent the federal government from withdrawing tax exempt status or otherwise discriminating against an individual because of their feelings about same-sex marriage.
The bill is currently in committee in the House of Representatives. To pass, the law would have to proceed out of committee and be brought to the floor of the House.
The three individuals who could help the most with this process are:
- Rep. Paul Ryan-the Chairman of the Ways and Means Committee
- Rep. Jason Chaffetz-the Chairman of the Government Oversight & Reform Committee
- Speaker John Boehner-the Speaker of the House
If you decide that the best way for you to help preserve the rights of Latter-day Saints is through this law, contacting these individuals would likely be the most efficient way of helping this bill proceed.
What Crosses the Line?
As we look at the immediate and long-term effects the Supreme Court ruling may have, it is natural to wonder which legal changes can be endured, and which are a call to action.
I’m simply not in a position to answer that question for you. Individual Latter-day Saints can advocate freely on any of these causes, and can always petition the government for a redress of grievances. Some of these will impact individual Latter-day Saints in different ways than others.
But we must ensure that kindness and consideration prevail in all our efforts. If there is a need for Latter-day Saints to work together, we can trust our leaders to guide us. In the First Presidency’s recent letter to all members they wrote:
[quote_box_center]The gospel of Jesus Christ teaches us to love and treat all people with kindness and civility—even when we disagree. We affirm that those who avail themselves of laws or court rulings authorizing same‐sex marriage should not be treated disrespectfully. Indeed, the Church has advocated for rights of same‐sex couples in matters of hospitalization, fair housing and employment.[/quote_box_center]
As we choose what to do next, I encourage you to follow your conscience, and follow closely the words of our Prophet and Apostles.
More resources:
A Tale of Two Tolerances by Gregory L. Smith
Forgetting the Connection Between Law and Morality by Carl Herstein