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Gay marriage ruling leaves debate about religious liberty wide open

The Supreme Court made a number of important decisions this term, but none more transformative than legalizing gay marriage. The decision, however, does not settle the issue of gay rights and religious liberty.

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    A man holds a US and a rainbow flag outside the Supreme Court in Washington after the court legalized gay marriage nationwide on June 26. After the decision, religious conservatives are focusing on preserving their right to object. Their concerns are for the thousands of faith-based charities, colleges, and hospitals that want to hire, fire, serve, and set policy according to their religious beliefs.
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Two blockbuster cases dominated the docket at the United States Supreme Court in its recently-concluded term – one stands as a civil rights landmark, the other is slipping into quiet obscurity.

In its 2014-15 term, the high court decided 74 cases, including rulings upholding the president’s power to determine US policy over the contested status of Jerusalem, permitting Texas to exclude the confederate flag from specialty license plates, and barring prosecutors from treating an undersized grouper as the legal equivalent of a shredded document.

But by far the term’s biggest decisions came in the court’s historic ruling for same-sex marriage and in a 6-to-3 vote upholding distribution of tax credits in President Obama’s health care reform law. 

While the same-sex marriage decision will reverberate for years, the high court’s ruling in the Obamacare case has quickly fallen off the national radar now that the once-dire threat to millions of health insurance policies has subsided.

In contrast, Justice Anthony Kennedy’s decision in the same-sex marriage case is a transformative event. It marks the most significant civil rights decision by the high court in at least a generation – a kind of gay rights version of Brown v. Board of Education.

In his decision, Justice Kennedy established that the fundamental right to marry embraces all Americans – regardless of sexual orientation.

In the 5-to-4 ruling, the high court said that state bans on same-sex marriage violate due process and equal protection rights of the Fourteenth Amendment.

The decision effectively ends a rancorous state-by-state debate over marriage, and extends a welcoming hand to a segment of American society that has faced open hostility and discrimination.

As such, the marriage decision represents a huge victory for the lesbian, gay, bisexual, and transgender (LGBT) community, their friends, families, and other supporters.

“This decision affirms what millions of Americans already believe in their hearts. When all Americans are treated as equal, we are all more free,” President Obama said in comments shortly after the ruling.

Kennedy's carefully worded decision

But the case that sharply divided the court itself has also left the country sharply divided. Religious conservatives feel they are under siege and are looking for ways to fight back or protect themselves.

Recognizing this, Kennedy’s decision hints at matters beyond gay marriage and anticipates the next big high court showdown – a bitter national struggle pitting gay rights against religious liberty.

Analysts say Kennedy went out of his way in his decision to avoid labeling religious conservatives as bigots or motivated by animosity toward homosexuals. That posture is critical, they say, because it leaves open a way for the court in future cases to balance the competing interests of religious conservatives with the growing rights and clout of gay Americans.

“Kennedy, I think, wants to keep the court’s options open to respect religious and traditional marriage libertarian rights to exclude or to discriminate,” Yale Law Professor William Eskridge told a recent gathering of the American Constitution Society.

“Justice Kennedy is loath to close off those options,” he said.  

Professor Eskridge noted that Kennedy provided the decisive fifth vote in a 2000 high court case that upheld the Boy Scouts’ right to bar gay men from serving as scoutmasters. To the Boy Scouts, the decision affirmed their right to associate with like-minded individuals. To the rejected scoutmaster, the decision endorsed blatant anti-gay discrimination.

Washington Appellate Lawyer Gene Schaerr said in a Heritage Foundation briefing that Justice Kennedy went “out of his way in numerous places in his opinion to try to suggest respect for the religious viewpoint on this issue.”

“Those of us who care about religious liberty can be grateful that Justice Kennedy’s opinion dodged some big bullets,” Mr. Schaerr said. “But the opinion, unintentionally I think, launched a number of grenades that are still in the air.”

He noted that some religious organizations may soon face loss of their tax exempt status unless they jettison their opposition to same-sex marriage, and religious colleges may discover their accreditation is in jeopardy if they are found to discriminate against same-sex married couples in violation of constitutional rights.

SCOTUScare?

In contrast to the historic same-sex marriage landmark with its ongoing repercussions, the high court challenge to President Obama’s health care reform law is fast on its way to being forgotten.

Had a majority of justices agreed with the plaintiffs that the Affordable Care Act barred the distribution of tax credits thorough federal health care exchanges set up in 34 states, that decision would have gutted the ACA and left millions of Americans unable to afford any health insurance.

But that’s not what happened.

Instead, the court essentially gave the Obama administration the benefit of the doubt over what the majority justices said were “a few examples of inartful drafting.”

Writing for the majority in the 6-to-3 decision, Chief Justice John Roberts said it would make no sense for Congress to create a law meant to advance universal health care by allowing tax subsidies only in health care exchanges established by a state – rather than also in exchanges set up by the federal government.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice Roberts wrote.

It marked the second time the chief justice had joined the high court’s liberal wing to save the ACA from its potential demise at the nation’s highest court. In June 2012, Roberts joined with the court’s liberal wing to uphold the controversial measure after concluding that the law’s mandated insurance requirement amounted to a tax rather than a penalty.

The chief justice’s twin rescue operations prompted Justice Antonin Scalia to quip in a dissenting opinion that rather than calling the law Obamacare, it should be renamed SCOTUScare.  (SCOTUS is an acronym for Supreme Court of the United States.)

Beyond the two blockbusters, the court’s term produced several other notable decisions.

In an 8-to-1 decision, the court put employers on notice that they must recognize the need to accommodate religious practices of their workers or job applicants, even when a job applicant fails to request an accommodation.

In that case the court ruled for a Muslim teen who was rejected for a job at an Abercrombie Kids store because she wore a headscarf.

A conservative court's liberal swing

In its 10th year under Chief Justice Roberts, the court remains essentially a conservative body. But you wouldn’t know it from this year’s highest profile cases. Of the top 10 decisions of the term, analysts classify eight as liberal victories. Only two of the top 10 decisions are said to embrace a conservative approach.

This pendulum-like movement at the court between liberal and conservative rulings is due in large part to Justice Kennedy’s position at or near the center of the nine-member court.

He is, thus, frequently positioned to cast the fifth and deciding vote in controversial cases.

The chief justice has also occasionally swung over to join the liberal wing in high profile cases, as both he and Kennedy did in the Obamacare decision.

Despite that exception, Kennedy’s power to singlehandedly decide major cases was on full display this term.

He provided the deciding vote in a ruling that an independent commission formed in Arizona by ballot initiative did not violate the Constitution’s "elections clause."

The decision is a major victory for election reform advocates. It upholds similar commissions in six other states and gives a green light to others looking for ways to reduce the involvement of partisan politics in drawing election districts.

Kennedy also swung over to join his liberal colleagues in a redistricting case in Alabama. In that case the court agreed to keep alive a challenge to a voting map drawn by the Republican-controlled state legislature. Minority groups charged the map illegally undercut black voting clout in the state.

Kennedy also played a key role in holding off an effort by the court’s conservatives to bar the use of so-called disparate impact discrimination claims under the Fair Housing Act.

The case marked the third time in recent years that the court’s conservatives had sought to take up a case to strike down the disparate impact approach under the FHA.

The disparate impact theory of discrimination permits lawsuits when a statistical analysis shows that minorities suffer disproportionate harm from a particular policy – even when that policy is racially neutral.

Instead of joining the conservatives, Kennedy sided with the liberal wing and wrote the majority opinion upholding disparate impact lawsuits under the FHA, but also seeking to impose limits on such suits when they might lead to racial quotas.

Conservative victories

Apart from the string of liberal wins, the high court produced two conservative victories among the term’s top cases. Both were made possible by the swing vote of Kennedy.

In one, the court ruled that the Environmental Protection Agency must take the cost of compliance into account when considering whether to regulate toxic air pollutants emitted from coal- and oil-fired power plants.

In the second conservative victory, the court upheld Oklahoma’s use of the drug midazolam as part of its three-drug lethal injection protocol despite the involvement of that same drug in three botched executions last year.

Again, with Kennedy’s support, the court said three Oklahoma death row inmates had failed to prove that the state’s use of midazolam presented an intolerable risk that the condemned prisoners would suffer severe pain during the execution process.

The case was important because capital punishment abolitionists have been working to dry up the availability of certain drugs used in lethal injections. The ruling will make it easier for states like Oklahoma to continue to use midazolam, and to continue carry out executions.

The case is also notable because two liberal justices, Stephen Breyer and Ruth Bader Ginsburg, announced that they believe the time has come to declare the death penalty unconstitutional.

That announcement is expected to trigger a new round of litigation in death penalty cases with an eye toward bringing a dispute to the high court that might facilitate a decision striking down capital punishment throughout the US. As in most other high profile cases, the outcome in that one would likely, once again, come down to the vote of Justice Kennedy.   

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