Judging from at least three developments in recent weeks, it would seem that the long-anticipated confrontation between religious rights and gay rights is coming to a head.
Two weeks ago the U.S. Supreme Court heard oral arguments in the case of a Colorado graphic designer who refused to create websites celebrating same-sex weddings on free speech grounds, even though a state law prohibits discrimination based on sexual orientation. She claims that her Christian observance forbids same-sex marriages and she shouldn’t be required to use her creative talents to contribute to a same-sex wedding.
The New York Times reported that a majority of the Justices seem ready to back the web designer. If that is the case, Court would be empowering an individual merchant serving he public – not a religious institution committed to propagating religious doctrine – to ignore an anti-discrimination law. Indeed, multiple Justices seem troubled by the risk that anti-discrimination laws could effectively be gutted.
Then, last week, President Joe Biden signed the “Respect for Marriage Act” into law, which codifies recognition of same-sex marriages in federal law. Since the same protections have already been declared by the Supreme Court to be constitutional rights, the new law is widely regarded as largely surplusage. Its sponsors readily admit that they acted following the Supreme Court’s overturning of Roe v. Wade and its constitutional protections for abortions; but while the law is largely seen as an exercise in excessive caution, breaking no new ground, parts of the act suggest otherwise:
“For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is between two individuals and is valid in the State where the marriage was entered into … Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the constitution of the United States or Federal law.”
Noteworthy is that the bill adds no protections for religious freedom. It merely reaffirms those “otherwise available,” begging the question. But then comes language that seems to limit the protections for religion to organizations dedicated to the propagation of the faith:
“Consistent with the First Amendment to the Constitution, non-profit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.”
The Supreme Court is the final arbiter of religious freedom, but the die has been cast. The new law puts the clash between religious and gay rights squarely before us.
Finally, last week Yeshiva University lost the most recent round of legal proceedings in its effort to overcome a ruling that it must recognize the YU Pride Alliance as an official student campus group. The New York State Appellate Division in Manhattan reaffirmed the ruling that Yeshiva University does not meet the legal definition of a religious corporation, which would have exempted it from having to recognize the gay group.
Because YU and YU Pride entered into an agreement staying enforcement of all rulings until the entire appeals process – up to and including the US Supreme Court – was completed, last week’s appellate division decision created no urgency. It will also be recalled that the Supreme Court has already indicated in a prior phase of the case that it is leaning towards upholding YU’s position. The key will be how the Supreme Court actually goes about deciding the case.
