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Get Ready for Trench Warfare over Religious Liberty, Says Law Professor about Same-Sex Marriage

Gay rights advocate protests “religious freedom”

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John Burger - published on 07/07/15 - updated on 06/08/17

Catholic University's Robert Destro discusses the "new normal" in America

An Oregon bakery that declined making a cake for a lesbian couple’s wedding was ordered to pay the women $135,000 in damages the other day. 

County clerks in Texas and Alabama are risking disciplinary action for refusing to sign marriage certificates that have the names of two men or two women. 

And at least one priest has announced that he will no longer serve as an agent of the state in conducting marriages.

Welcome to post-Obergefell America. 

While gay rights activists are celebrating the "new normal" in America, some people are still trying to digest Supreme Court Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, the case that mandated same-sex marriage nationwide, and wondering how the 5-4 decision will affect religious liberty.

Catholic University law professor Robert A. Destro says we’re in for a long fight. 

Destro, founding director of the Interdisciplinary Program in Law & Religion at Catholic University’s Columbus School of Law, served as a Commissioner on the United States Commission on Civil Rights and led the Commission’s discussions in the areas of discrimination on the basis of disability, national origin and religion. He is co-author, with Michael S. Ariens, of Religious Liberty in a Pluralistic Society (Carolina Academic Press). He spoke with Aleteia about the religious freedom implications of Obergefell.

What are your thoughts on the decision, and where do you think it will lead, particularly in the realm of religious freedom?

I think there’s going to be a lot of fighting in the years to come about the nature of religious freedom. The Obergefell decision is only the beginning. There’s a lot more to the religious freedom issue than meets the eye. All you have to do is read the literature to see where this is going. LGBT advocates have been very open about the civil rights agenda going forward. Hillary Clinton has said that “[r]ights have to exist in practice—not just on paper.”  She warns that “Laws have to be backed up with resources and political will. And deep-seated cultural codes, religious beliefs and structural biases have to be changed.” President Obama has said much the same thing, and James Obergefell, the plaintiff who challenged Ohio’s laws, has described the religious freedom argument as "offensive." 

So I think we’re looking at a protracted battle over whether local, state and federal government agencies are going to be willing to allow legitimate dissent from what is rapidly becoming the new orthodoxy about sexual identity and relationships.  If, as the Court says, individuals have a constitutional right “to define and express their identity,” does that right also include the right to demand that the law force others to accept and affirm that identity?  Justice Kennedy’s opinion says that it does.  To deny equal treatment based on “sincere, personal opposition … demeans or stigmatizes those whose own liberty is then denied.” If Justice Kennedy and Hillary Clinton are right that the government has the right and duty to forbid expression that “demeans or stigmatizes” others because of the ways in which they express their “identities,” religious dissenters are in deep trouble.

Consider the Bruce (Caitlyn) Jenner case. Legally, your “name” is “what you call yourself,” so Jenner certainly had the legal right to change his name from Bruce to Caitlyn and to ask the state and his fellow citizens to respect that choice.  But that’s not what the debate was about. People change their names every day. Jenner also has the right, as a human person, to demand that the state provide him “equal protection of the laws” and that his fellow citizens respect his rights to life, liberty and property. But what about his right to define his own “identity”? Does Jenner have the right to demand that those who comment on his case use the pronoun “she,” or to affirm the proposition that his choice to present himself as a woman requires others to accept and affirm publicly that he is one? If so, it will not be enough for those who have contrary views simply to keep quiet. These are the free speech and religious freedom battles of the future.

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HomosexualityReligious Freedom
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