Few Supreme Court decisions have generated as much comment as the two last week involving Obamacare and same-sex marriage. And there is certainly a lot to say about each. But one of the overriding concerns in the Orthodox Jewish community is what effect the court’s ruling on same-sex marriage may have on the right of religious Americans to refuse to act in ways that countenance or legitimize same-sex unions. Some concerns may sound far-fetched, but still present themselves.
Can a clergyman refuse to officiate at a same-sex wedding and not jeopardize his house of worship’s tax-exempt status? Can a parochial school refuse to accept children being raised by a same-sex married couple? Can churches deny membership to nominally Christian gay couples? Can a church or synagogue refuse to rent party space to a homosexual couple?
Can adoption agencies limit the placement of children to heterosexual couples only? And what about religious colleges limiting acceptance to heterosexual couples or denying student housing to homosexual couples? Can religious marriage counselors limit their practice to heterosexual couples?
In his dissenting opinion, Chief Justice Roberts got it right: “Hard questions arise when people of faith exercise religion in ways that may seem to conflict with the new right to same-sex marriage…”
In truth, the emergence of these issues points up a problem that inevitably accompanies social change largely driven by court rulings. Courts are not especially equipped to deal with the nuances of public policy. In courts, issues tend to become defined as matters of general legal principle rather than social concerns that are more properly grist for legislative fine-tuning.
We are opposed to same-sex marriage in any event, but the debate and ultimate resolution of such contentious issues in a representative democracy should be left to local legislatures.