Same-sex marriage ruling settles one legal question, leaves many others

WASHINGTON (CNS)—When the Supreme Court ruled that marriage licenses could not be denied to same-sex couples nationwide, it may have settled one legal issue, but it left many more unanswered questions, particularly in the realm of religious objections.

Within hours of the 5-4 ruling, worried speculation raised the possibility of repercussions: for religious colleges that would not want same-sex spouses in their married student housing; for church-run social service agencies morally opposed to enabling gay couples to adopt; and to the tax-exempt status enjoyed by churches that may not want to acknowledge same-sex marriages.

Although some critics of the decision suggested clergy would be required to conduct marriage ceremonies that conflict with their faiths' teachings, most legal observers said that clearly would not pass legal scrutiny. Catholic priests, for instance, already are able to refuse to preside over weddings of people they believe are unsuited for the sacrament of marriage, even though they are legally entitled to be married.

But there are many other possibilities for legal conflicts arising from objections to same-sex marriage that are rooted in religion.

A few states already are acting to protect faith-based objections. In some places, county clerks quit their jobs rather than issue marriage licenses. In others, clerks who also did not want to issue licenses refused to quit.

The 5-4 ruling written by Justice Anthony Kennedy found a right for same-sex couples to marry under the 14th Amendment to the Constitution, which provides for equal protection under the law. Kennedy's opinion gave a nod to those who believe same-sex marriage to be wrong "based on decent and honorable religious or philosophical premises."

He said the First Amendment ensures that religious organizations and individuals are protected "as they seek to teach the principles that are so fulfilling...and to their own deep aspirations to continue the family structure they have long revered."

But in a strong dissent, Chief Justice John Roberts said the ruling "creates serious questions about religious liberty." He observed that in each of the states in which same-sex marriage was allowed either by voter referendum or legislative action, the law included accommodations for "dissenting religious practice."

Of the 36 states and the District of Columbia that permitted same-sex marriage before June 26, in only 10 jurisdictions did that come about through laws that were adopted by the legislature or voters. In the rest, it came about through a state or federal court ruling.

Roberts noted that the majority opinion in Obergefell v. Hodges created no accommodations for religiously based objections. He said though the First Amendment guarantees "the freedom to 'exercise' religion...ominously that is not a word the majority uses."

Among the "hard questions" he predicted would arise would be those involving married student housing at a religious college, religious adoption agencies and tax exemptions of religious institutions.

Catholic entities in some states have been dealing with same-sex marriage for as much as 15 years. In Massachusetts, for example, Catholic agencies got out of the business of handling adoptions because of theological objections to same-sex couples adopting children. Same-sex marriage became legal in Massachusetts in 2004.

Father J. Bryan Hehir, secretary for Health and Social Services for the Archdiocese of Boston, returned to work in the archdiocese just as same-sex marriage was becoming a factor there. He had spent several decades working in Washington, as president of Catholic Charities USA, at Georgetown University and at the U.S. Conference of Catholic Bishops.

"Adoption was the big issue for us," he said. "We felt we had no other choice" but to withdraw from handling adoptions. Other social service agencies picked up adoptions when Catholic organizations phased out of them.

Otherwise, said Father Hehir, there have not been implications for how the charitable agencies under his jurisdiction operate.

Religious entities figuring out how to adjust to the new reality of same-sex marriage nationwide need to be conscious of the distinction between political and legal questions and the pastoral issues that will arise, Father Hehir said.

"It will be very important to focus on the teachings of the church," he said, while keeping in mind that Catholic institutions employ a diverse workforce and have many functions that are available to anyone.

"We don't say, 'Are you hungry and Catholic,'" he said. "We just ask, 'Are you hungry?'"

At least one Catholic school in Massachusetts recently was in the news for firing a school employee when it became known that she had a wife. Similar situations have arisen in other states.

The National Catholic Educational Association said that it does not keep data about the provisions Catholic schools may have in employment contracts or about employment-related lawsuits.

Christian Brother Robert Bimonte, president of the NCEA, said in a statement: "Teachers in Catholic schools are held to high standards and each diocese determines their own employment policies. In upholding those standards, each local diocese must ensure that mutual respect, compassion and pastoral sensitivity prevail."

A 2012 Supreme Court ruling over the firing of a teacher at an Evangelical Lutheran school still sets the standard, said the NCEA statement. In Hosanna-Tabor vs. Equal Employment Opportunity Commission, the court affirmed that churches, their schools and other religious groups "must be free to choose their teachers and employees when their primary duties consist of teaching, spreading the faith, church governance, etc., without government interference."

Mark Chopko, a partner at Stradley Ronon Stevens & Young who specializes in legal issues affecting religious and nonprofit organizations, said he expects legal challenges will arise over tax exemptions, employment and accommodations such as the rental of parish halls to the public.

"To a certain extent none of these questions are new," said Chopko, who formerly was general counsel to the U.S. Conference of Catholic Bishops. "They have been around in some form for 20 years, since Hawaii first introduced the idea of same-sex marriage as a right protected under the state Constitution."

He said he does not expect threats to churches' tax exemption will be a serious legal issue.

"Certainly someone may try to sue," he said. "The Church has seen similar pressures over abortion and the licensing and exemption of health care facilities."

He said challenges over things like church hall rentals—such as if a parish refused to rent their hall to a same-sex couple but would allow it to be used by a heterosexual couple—would depend upon how each state's statutes on public accommodations are interpreted.

As to employment, Chopko noted that the ruling in Hosanna-Tabor set the standard that "some jobs are so integral to ministry that there has to be some kind of religious test."

But it would just be inviting lawsuits for a religious institution to try to define every employee as a minister for the purposes of getting around equal employment laws affecting same-sex spouses, he said.

"Religious organizations, as they always have, need to decide which positions are vital to the advancement of preaching, teaching and evangelization, and why," he said." And then they will have to decide whether those positions will be barred to persons who do not exactly mirror the Church's practices. Ultimately, beyond legal bases for action, religious leaders will need to look at best pastoral and personnel practices as well as justice and mercy in making these decisions."