Religious Freedom Annual Review: Gay marriage’s effect on religious freedom

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Abhishek Jacob
BYU’s Religious Freedom Annual Review is one of the first major forums to address the impact of Obergefell v. Hodges.

Although more than a week has passed since the Obergefell v. Hodges ruling legalized gay marriage in the U.S., proponents of religious freedom and traditional marriage continue to sort out how this decision could impact their personal lives. Scholars at BYU’s Religious Freedom Annual Review were already addressing these questions.

The review, which ran July 6–8, is thought to be the first international meeting sponsored by a religious organization to discuss the issue of religious freedom since the ruling on gay marriage.

Tuesday attendees listened as panelists in a discussion focused on how the Obergefell decision could potentially infringe on the rights of individuals and institutions that support traditional marriage. Panelists discussed how the decision could increase specific instances of government’s infringement in individual and institutional matters of religious freedom. Panelists also stressed the importance of defending traditional marriage in a logical and rational way while also respecting those who do not hold the same views.

D.C. Attorney Gene R. Schaerr, a BYU graduate, began the panel by stating the case supporting traditional marriage should not have to rely on any religious or moral guidelines. Schaerr represented Utah, Idaho and other states in an effort to repeal gay marriage to the 10th Circuit of Appeals in Kitchen V. Herbert.

“I have always felt that traditional marriage can and should be defended in a way that an atheist or an agnostic would find the defense perfectly sensible and acceptable,” Schaerr said.

Panelists at the Review focused their discussion on legal precedence and the logical validity of protecting religious freedom and defending traditional marriage. One argument in the same-sex marriage debate that Schaerr deemed as invalid is the idea that religious objections to same-sex marriage will go away because objections to interracial marriages eventually went away.

“There was never any religious body that I have heard of or have heard of since that thought that racial homogeneity is central to marriage. Nobody ever taught that,” Schaerr said.

In contrast, Schaerr pointed out, all three of the Abrahamic religions of Judaism, Islam and Christianity, along with other major world religions, have taught that marriage between a man and woman is an essential part of the definition of marriage. A statistical analysis also shows that since Justice John Roberts has been Chief Justice, the Supreme Court has ruled in favor of protecting religious freedom in 83 percent of its rulings in such cases.

“My guess is that our current Supreme Court is probably the most protective of religiously motivated conduct in our history, so it’s a good time to be pitching civil liberty cases in their direction,” Schaerr said.

Alexander Dushku, another panelist, said culture and constitutional law constantly affect and redefine each other. Dushku, whose law firm frequently represents the LDS Church, said the way society balances out religious freedom with same-sex marriage will depend on America’s cultural reaction to the Obergefell decision.

“In these sensitive constitutional areas, culture often drives constitutional law as much as the Constitution and precedence,” Dushku said.

Shaerr laid out 12 potential threats the Obergefell decision could launch against proponents of religious freedom. He divided these threats in half: the first six show how the Obergefell decision could affect an individual’s religious freedom, and the latter six show how the Obergefell decision could infringe on institutional rights.

On an individual level:

1. Professional counselors

2. Professionals in unrelated occupations

3. School teachers

4. Parents with children in public schools

5. Clerks/government officials

6. Wedding service providers

On an institutional level:

7. Tax-exempt status

8. Religious school housing policies

9. Licensing/accreditation

10. Government contracts

11. Employment

12. Ability to have marriages recognized by the state

Robin Wilson, a law professor from the University of Illinois College of Law, said during the panel that advocates in favor of privatizing marriage — removing government oversight of marriage all together — would actually cause harm to religious marriage.

“We collapse religious marriage with a civil marriage because we want religious marriage to have civil effects,” Wilson said.

Wilson continued by describing the benefits civil marriage receives from religious marriage. Civil marriage is strengthened by the moral implications religious marriage adds to a union.

“Religious marriage has norms of conduct, fidelity, monogamy, faithfulness and sexual exclusivity, and they get put into our marriage culture as part of our civil marriage,” Wilson said.

Schaerr finished by saying that although it will be several years until all of the repercussions of the Obergefeld decision are known, much will depend on the political and social advocacy of those in favor of religious freedom.

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