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Battles over religious freedom are sure to follow same-sex marriage ruling

For some, the Supreme Court's decision declaring that same-sex couples have a constitutional right to marry put the free exercise of religion in danger.

Chief Justice John G. Roberts Jr. was among them.

"Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage — when, for example, a religious college provides married student housing only to opposite-sex couples, or a religious adoption agency declines to place children with same-sex married couples," Roberts wrote in a dissent joined by three other justices.

He also perceived a threat to tax exemptions for religious schools and colleges that oppose same-sex marriage. "Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today," Roberts said.

On the other hand, the same high court has expanded religious liberties. Just a year ago, the court's majority ruled for the Christian owners of the Hobby Lobby chain of craft stores, holding they had a religious-freedom right to refuse to pay for certain contraceptives mandated by the Obama administration under the federal Affordable Care Act.

Only Justice Anthony M. Kennedy was in the majority both times — in favor of a right to marriage for gay and lesbian couples and in favor of a legal exemption based on a sincere religious belief.

The close divide among the justices almost ensures that new legal battles lie ahead. But when it comes to same-sex marriage, the June 26 ruling largely resolved the chief legal disputes.

Though some conservatives have complained that the decision forces religious people to perform same-sex weddings they believe violate their faith, ministers and pastors still have a right to refuse to participate in such ceremonies, as even supporters of gay rights are quick to acknowledge.

"The Constitution makes clear that churches don't have to marry anyone. And the ACLU would defend any cleric who faces such a threat from the government," said James Esseks, director of the American Civil Liberties Union's Gay, Lesbian, Bisexual Transgender Project.

Leaders of the Southern Baptist Convention, who strongly opposed the court's decision, agreed, saying they do not see the ruling as posing a direct threat to pastors.

"I am not aware of any problem of a pastor being coerced" to conduct a same-sex marriage, said Roger Oldham, a spokesman for the group in Nashville. "We do believe the whole landscape has changed. There's a lot of uncertainty about the future. But no, we have not seen a threat to an individual pastor."

On the other hand, county clerks must be willing to provide all marriage licenses, regardless of their personal religious views. The difference, of course, is that the Constitution limits the government and its employees, not private citizens.

"The state and its counties are bound by the decision, and they do not have religions," said University of Virginia law professor Douglas Laycock, an expert on the 1st Amendment and religious liberty. "Someone has to issue licenses, and I would say they must do so without imposing delay or inconvenience on the same-sex couples."

In several states, officials said they planned to "accommodate" individual employees who objected to same-sex marriage, but only if another employee was available to take their place. Under the law, same-sex couples cannot be turned away because of an employee's personal views.

Washington attorney Walter Dellinger, a former solicitor general, questioned the notion that public employees had a religious right to refuse to serve some people. "How long, in minutes, would a Texas county clerk last in a job if he or she refused to issue hunting licenses because of a personal religious objection to killing animals?" he asked in a blog post shortly after the ruling.

Government employees who violate someone's constitutional rights are subject to lawsuits in federal court. And in extreme cases, they can be forced to pay damages.

Looking ahead, both religious rights advocates and gay rights supporters say they can see the government ending the tax exemptions for religious colleges and universities that discriminate against gays and lesbians.

In 1983, the Supreme Court upheld an Internal Revenue Service decision to end the tax exemption for Bob Jones University in South Carolina because it prohibited dating between black and white students.

"That attack is coming. [That] tax-exempt status could be stripped away," said Kelly Shackelford, chief executive of the Liberty Institute, a public interest law group that fights for religious liberty, in Plano, Texas.

But Laycock, the Virginia professor, predicted it would be many years before such a change was considered. Congress has not passed a law forbidding discrimination based on sexual orientation. "I can't envision an administration of either party doing this until open resistance to same-sex marriage is confined to a handful of people and institutions," he said.

In the meantime, the most publicized disputes have focused on the handful of cases in which someone in the wedding business — a cake maker, florist or photographer — refuses to serve a same-sex couple, citing their religious faith as the reason.

These cases are largely unaffected by the same-sex marriage ruling and instead turn on laws in about half the states that require businesses that are open to the public to serve customers without regard to sexual orientation.

On July 2, the Oregon state labor commissioner upheld a $135,000 verdict against a Christian couple who refused to bake a wedding cake for two women. One of the women said the business owner described her marriage as an "abomination." A Colorado appeals court heard a similar case last week.

In an interesting twist, these cases could face an uphill climb at the Supreme Court because of previous decisions by Justice Antonin Scalia and his fellow conservatives, who may have unintentionally made it harder for Christian couples to use federal law to battle these state rules.

In 1990, Scalia wrote an opinion that sharply limited the "free exercise" of religion protected by the Constitution. Believers are not entitled to religious exemptions from general laws, he said. In response, Congress passed the Religious Freedom Restoration Act in 1993 to restore protections for religious liberty.

Determined to have the last word, the high court in 1997 struck down part of the law and said Congress did not have the power to force states to grant religious exemptions. Justices Scalia, Kennedy and Clarence Thomas were in the majority in the case of City of Boerne vs. Flores, which began as a dispute over a historic church in Texas.

The high court's rulings at the time were seen as conservative victories for states' rights, but they now could bolster the "blue" states whose gay rights laws are under attack from Christian conservatives.

"It's a great and interesting irony," said Elliot Mincberg, a lawyer for People for the American Way who worked on the 1993 law.

The federal religious-freedom law still applies to the federal government and was the basis for the Hobby Lobby decision. But it does not extend to state laws, like the ones at issue in Oregon and Colorado.

Lawyers for the wedding cake makers and the photographer have had to argue that their clients were engaged in free speech and free expression, and therefore deserve the protection of the 1st Amendment. But so far, that argument has not been a winner with state courts.


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