In the first week after a divided Supreme Court declared same-sex marriage a fundamental constitutional right, conservative officials began wrestling with how to square the apparent contradictions of that new ruling with their religious beliefs.
Many of these first attempts are focusing on trying to get government agencies out of the marriage business altogether. The goal is to protect the freedom of conscience for clerks and government officials who do not want to participate in same-sex civil marriage ceremonies.
The moves stand on dubious legal ground, many experts say, suggesting that the situation is akin to racial prejudice in the past. Just as magistrates could not refuse to marry interracial couples after a key Supreme Court ruling in 1967, they say, they cannot now refuse to marry same-sex couples.
But for many Americans, who see the situations as different and argue that they should not be compelled to participate in a ceremony they find immoral, the proposed laws speak to the now-urgent need to protect religious liberty as same sex marriage becomes the law of the land.
- On Sunday, Texas Attorney General Ken Paxton (R) said county clerks and magistrates could refuse to issue marriage licenses or participate in marriage ceremonies for religious reasons. Although they could expect to be sued, he said, “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights,” Mr. Paxton said in his legal opinion on the Supreme Court ruling.
- In Alabama, at least two county judges have said their jurisdictions will no longer be involved in “the marriage business,” permanently closing the marriage license bureaus in their county offices. “This decision is not based on me being a homophobic – people can do whatever they want in private,” said Geneva County Probate Judge Fred Hamic, according to local news site AL.com. “It is based strictly on my Christian beliefs.”
- In Michigan, a lawmaker introduced legislation that would end civil marriage ceremonies throughout the state. The bill, which would “essentially [deregulate] marriage from the clutches of the government,” said state Rep. Todd Courser, Republican co-sponsor, would only permit a “minister of the gospel” or other cleric or authorized religious practitioner to “solemnize” a couple’s marriage vows, and then provide the paperwork for the state to keep on record. A similar bill is reportedly in the works in Utah.
Roy Moore, the chief justice of the Alabama Supreme Court, addressed the deep misgivings that some conservative Christians have with the decision while speaking at a local church Sunday.
"Have we elevated morality to immorality? Do we call good, bad? What are we Christians to do?" said Justice Moore, who has fought with the US Supreme Court over same-sex marriage before. "When they create it as a national right, a fundamental right, what are we do?"
Analysts suggest that there is little legal recourse.
“You can’t simply recondition access to a fundamental right – the right to be able to marry – on the condition of participating in a religious activity,” says Elizabeth Cooper, a professor at Fordham Law School in New York. “You have a huge First Amendment problem here,” which forbids the establishment of religion.
This year, debates have raged over questions about the “public accommodation" that florists, photographers, and other private business owners must give to same-sex couples seeking to use their services, sparking bitter controversies and lawsuits in states across the nation.
In his analysis of the 5-to-4 Supreme Court decision on Sunday, Texas Attorney General Paxton in Texas said that state and federal “religious freedom restoration acts” allowed individuals plenty of room to opt out of participating in same-sex marriages, so long as the state provides alternative access to marriage ceremonies.
But opponents see this as analogous to an argument based on race. Can a person refuse to marry interracial couples, if it is against his or her religion?
“I’d imagine there were similar attempts by clerks after the Loving decision,” says Professor Cooper, referring to the landmark 1967 Supreme Court case that declared state bans on interracial marriages to be unconstitutional.
“Just like we wouldn’t permit racial discrimination under the guise of permitting religious practice, I believe that we cannot permit discrimination against same sex couples under the guise of religion,” Cooper says.
Paxton, however, hopes the conflicting constitutional values can “peaceably coexist.”
“In recognizing a new constitutional right in 2015, the Supreme Court did not diminish, overrule, or call into question the rights of religious liberty that formed the first freedom in the Bill of Rights in 1791,” he wrote on Sunday. “This newly minted federal constitutional right to same-sex marriage can and should peaceably coexist with longstanding constitutional and statutory rights, including the rights to free exercise of religion and freedom of speech.”