Hodges I am going to look at how the decison and the dissenting judgments deal with the implications of the judgment so far as Religious Freedom is concerned Under the 1st Amendment to the US Constitution the "free exercise" of religion is explicitly protected "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" The question of a possible conflict between Religious Rights and the newly discovered invented! The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. 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.
If she wins a constitutional right to same-sex marriage for her clients, would that mean that clergy who will not officiate at same-sex wedding ceremonies would forfeit the power to officiate at opposite-sex wedding ceremonies?
Bonauto seemed understandably flustered because neither she nor any other advocate of marriage equality had ever implied or requested that clergy be obligated to perform same-sex ceremonies as a condition of performing opposite-sex ceremonies. If the Court finds a constitutional right to same-sex marriage, clergy whose own religious doctrine forbids same-sex marriage undoubtedly will not be obligated to officiate at any marriage ceremonies for same-sex couples.
But there remains the question why not? That question is not a no-brainer.
Answering it satisfactorily may shed light on the broader issue of the sometimes-fraught relation between equality and religious liberty. Clergy who officiate at weddings perform a religious ceremony that also has civil significance, changing the legal status of the participants from single or widowed or divorced to married.
But if clergy exercise government power in this way, they are bound by the Constitution. And so, Justice Scalia suggested, if there is a constitutional right to same-sex marriage, then any clergy who hold themselves out as willing to perform opposite-sex marriages would also have to perform same-sex marriages.
Otherwise they would be acting unconstitutionally. Justice Scalia was not suggesting that any member of the clergy could be legally required to perform a same-sex wedding ceremony.
Instead, he was saying that if the plaintiffs win, states could no longer deputize clergy who perform only opposite-sex marriages to perform civil as well as religious marriages. She said that the Constitution already permits clergy who perform weddings to employ criteria that, in other circumstances, would be impermissible grounds for government decisions.
For example, Justice Kagan noted that many rabbis will not officiate at interfaith weddings, even though the government may not generally discriminate on the basis of religion.
A law forbidding a Jew from marrying a Christian would obviously be unconstitutional but a rabbi who does not officiate at interfaith weddings does not thereby violate the Constitution, despite the fact that the state gives civil significance to the intrafaith wedding ceremonies that the same rabbi does perform.
Thus, Justice Kagan implied, the same would be true for same-sex marriages. Even if laws forbidding same-sex couples from marrying are unconstitutional, a minister who does not officiate at same-sex weddings does not thereby violate the Constitution, despite the fact that the state gives civil significance to the opposite-sex wedding ceremonies that the same minister does perform.
For one thing, religious discrimination by religious actors is categorically different from other kinds of discrimination. Part of the point of protecting religion is to protect communal practice, and that practice may be undermined if religious actors lack the power to set rules of admission and conduct for their members.
For that reason, federal civil rights law permits religious institutions some latitude to discriminate in favor of co-religionists, but not to discriminate on the basis of other forbidden grounds, such as race and sex. Although that is only a statutory rule, it is possible that the same basic insight that drove Congress to provide religious actors the latitude to discriminate with respect to religion explains the presumed constitutional result in the rabbi case.
But if so, then a rabbi or minister who refused to officiate at interracial weddings or at same-sex weddings would lack a good defense because such a refusal is not based on the religion of the participants. And yet everyone seems to assume that he or she can refuse to officiate for all manner of religious reasons, even where those reasons reach beyond the faith of the couple.
Again, the question is what grounds that assumption. At most, the comparison to civil rights law shows that no member of the clergy can be required to perform ceremonies that conflict with his or her religious duty.
But again, no one is suggesting that clergy can be so required. The question is why the state can confer civil legal authority on a clergy member who will use it in a way that would violate the Constitution if the state acted directly.
Some other process—whether the filing of a marriage license application or a civil ceremony or both—would be necessary for the couple to be married in the eyes of the secular law.
A Free Exercise Exception? In a different society, the foregoing logical conclusion would make a great deal of sense. Everyone seeking to marry would have a civil ceremony with legal consequences, and those who wished to have a religious ceremony as well would be free to do so.
This approach has long been followed in France and with the rising popularity of civil unions for opposite-sex as well as same-sex couplesit may be the wave of the future in much of the rest of Europe.
But despite our tradition of church-state separation, the United States seems unlikely to follow suit anytime soon. As a practical matter, we know that the Supreme Court is not about to say that states can no longer attribute legal significance to marriages performed by priests or ministers who only officiate at opposite-sex weddings, much less to marriages performed by rabbis or ministers, priests, or imams who only officiate at intrafaith weddings.Same-sex marriage (also known as gay marriage) is the marriage of a same-sex couple, entered into in a civil or religious ceremony.
The term marriage equality refers to a political status in which the marriages of same-sex couples and the marriages of opposite-sex couples are recognized as equal by the law..
As of , same-sex marriage is performed and recognized by law (nationwide or in. Same-sex marriage has made it easier to discriminate against gay people in the U.S.
In , legislatures will take on this issue, but the fights may get nasty. Federal legislation aimed at protecting the right of religious officials to refuse to marry same-sex couples should therefore include the following: (1) a conscience clause protecting a religious official’s refusal according to his faith to solemnize same-sex marriages, (2) a clause disallowing any civil or criminal liability for such a.
The Pros and Cons of Same-Sex Marriage. 1, words. 6 pages. A Personal Advocacy to Raise Awareness of the LGBTQ Community. words. 1 page. The Importance of Supporting Rights and Equality for LGBT Individuals.
words. 2 pages. An Argument Against the Position of the Supreme Court on Same-Sex Marriages. Same-sex marriage advocates are almost entirely about the public sphere -- they think same-sex couples should be entitled to the same public secular benefits of the marriage contract.
Equality under the law. If the Court finds a constitutional right to same-sex marriage, clergy whose own religious doctrine forbids same-sex marriage undoubtedly will not be obligated to officiate at any marriage ceremonies for same-sex couples.