The Supreme Court’s Same-Sex Marriage Ruling Strikes at the First Amendment

Orthodox Christians and Jews will soon be treated as second-class citizens.

By John Zmirak Published on June 26, 2015

Back in April I wrote a column that I hoped would someday embarrass me. Its title seemed alarmist and hysterical: “If the Supreme Court Imposes Same-Sex Marriage, You Could Lose Your Church.” In it, I cited the Solicitor General of the United States, who admitted to the U.S. Supreme Court that if the Court declared same-sex marriage to be a fundamental human right guaranteed by the Constitution, churches that refused to perform them would suffer consequences. Specifically, they would cease to be treated as non-profit charities that served the public interest. As I wrote at the time:

Imagine if your house of worship needed to turn a hefty profit, so it could pay the same taxes on its property and income as a casino or a strip joint — unlike Planned Parenthood, since that abortion business is a tax-exempt (and federally funded) “charity.” Imagine if none of the money you gave your church were deductible from your taxes, unlike the money you sent to Greenpeace. Many if not most religious schools and colleges would also shut their doors, unable to pay the same business taxes as for-profit diploma mills….

Expect many local congregations to leave the embrace of “outlaw” conventions such as the Southern Baptist, and strike out on their own with Caesar’s smile.

With this much money at stake, I will be shocked if some Catholic bishops don’t start performing same-sex marriages in their cathedrals. … By American law, each diocese is sovereign, and each bishop controls its property in a corporation quite independent of Rome. … If a pope deposed a bishop for violating church doctrine, and the bishop thumbed his nose and stayed in place, American courts would very likely side with the bishop — especially if the fight centered on a constitutional right, such as same-sex marriage. [Since the above was published, a court decision concerning the Episcopal Diocese of Fort Worth has confirmed that courts will rule in favor of bishops and against the leaders of denominations in squabbles over property.]

Now the Court has made its decision. It has declared that same-sex marriage is a fundamental right, and dismissed objections as the fruit of narrow bigotry which demeans the human dignity of homosexual citizens. In its brief, dismissive mention of the millions of Americans who carry on the Christian faith of many of the country’s founders, the Court allows that such people “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” The majority makes a cursory mention of the First Amendment, but not “free exercise of religion,” a point noted by Chief Justice John Roberts with grave alarm.

Instead, the Court lumps in orthodox believers who object to the reinvention of marriage with “those who oppose same-sex marriage for other [i.e., secular] reasons.” Both groups will continue to enjoy freedom of speech — the same free speech that currently would allow someone to propose a constitutional amendment re-establishing slavery or segregation. But the government wouldn’t view such a group as serving the public interest, and surely wouldn’t grant it the same tax exemption as churches that perform same-sex marriages — as Obama’s Solicitor General implied before the decision. These groups would suffer the same treatment as Bob Jones University did, for its racist policies that flouted federal court decisions supporting interracial marriage.

It is not some angry pastor fulminating from a tree stump that warns us what is coming. It is the Chief Justice of the U.S. Supreme Court, who writes in his stinging dissent:

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 married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. … There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. …

By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history — in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage — have acted to “lock .. out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

The “effect” of these “assaults” on “bigots” like us will soon be clear. Here’s my prediction: the next Democratic president will, through the IRS, erect a two-tier system of religious organizations — those that adhere to federal policy, and those that don’t. The first group will be treated as wholesome non-profits deserving of tax exemptions and federal contracts. The second group will be targeted as opposed to the public interest and the U.S. Constitution, and will be reluctantly tolerated — as today we put up with the preaching (but not the practice) of polygamous Mormons.

There are many countries that practice such a two-tiered approach to religion, around the world. Putin’s Russia favors the Orthodox Church, and disfavors evangelical “intruders.” China cooperates with “patriotic” churches that are willing to work with its Communist Party, and persecutes “underground” churches (evangelical and Catholic) that insist on their independence. In Turkey, the government funds Islamic education and builds new mosques when needed, while severely restricting the activities of Christians.

Indeed, the union of church and state has a long history in the West. The Roman emperors gilded the pagan temples, while slaughtering Jews and Christians. Christian emperors and kings hunted “heretical” Christians, most infamously in the Spain of the Inquisition and the England of Henry VIII and Elizabeth I. Our Puritan forebears hunted Baptists and Quakers, while Anglicans squabbled for government power in states like Virginia.

When our Founders drafted the U.S. Constitution, they decisively rejected this method of government support and control of churches. Now the U.S. Supreme Court has decisively rejected the Constitution, and plunged our government back into the sordid business of micromanaging its citizens in their relationship with God. It is not an exaggeration to say that orthodox Christians and Jews in America will soon be treated like dhimmis in a sharia-Muslim country — with a narrow right to “freedom of worship,” but not “free exercise of religion,” which is exactly how the Obama administration has rewritten the relevant portion of the U.S. citizenship exam. As Chief Justice Roberts correctly noted in his dissent, “The Court today not only overlooks our country’s entire history and tradition but actively repudiates it” (emphasis added).

Any Republican candidate seeking the nomination must make this issue the first, second and third on his agenda. Any believing citizen now needs to demand that solid protection for religious believers be put in place — strong enough to withstand the active hostility of the five anti-Christian oligarchs who now rule us from the Court. If we lose on this issue, we have lost everything.

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