Gay marriage foes reject Supreme Court ruling, dig in for extended culture war

Religious liberty continues to collide with gay rights six months after the Supreme Court’s landmark gay marriage ruling, seeing scattered — but feisty — rebellions around the country, with battles on new fronts expected in 2016.

Advocates on both sides have already zeroed in on at least six issues where the two values are colliding before legislatures and courts, ranging from conscientious objector rights to therapy bans.

Religious-liberty claims are already being used to “carve out” exemptions to anti-discrimination laws protecting lesbian, gay, bisexual and transgender (LGBT) people, James Esseks, director of the LGBT and HIV/AIDS Project at the American Civil Liberties Union (ACLU), told a recent telephone media briefing.

“This is, in some sense, the ’Plan B’ for those whose ’Plan A’ — which was stopping LGBT equality laws wholesale — hasn’t worked out so well,” Mr. Esseks said.

Religious freedom, he added, may be central to America’s core identity, but “we know that religious freedom doesn’t give anyone the right to harm other people. That’s not religious freedom, that’s discrimination.”

Traditional values supporters, however, say free exercise of religion is “an actual constitutional right” — unlike the Supreme Court’s June 26 finding in Obergefell v. Hodges that said the 14th Amendment requires states to issue marriage licenses to same-sex couples.

The “sexual-liberty-versus-religious-liberty battle is causing conflicts we didn’t have before,” Kelly Shackelford, president and chief executive of Liberty Institute in Plano, Texas, said in an interview this year with The Washington Times.

“We can win these cases,” but people have to be willing to stand up, said Mr. Shackelford, whose organization is already assisting churches and religious organizations and institutions to update their mission statements and policies on hiring and use of facilities, to fortify their positions on marriage and related issues.

ACLU looks ahead

The new year will bring cultural and legal battles in at least five major areas, ACLU leaders said in a recent telephone briefing.

Gay rights activists are expecting “a tremendous wave” of anti-transgender bills that will try to block people from using public facilities according to their gender identity rather than their biological sex, said Mr. Esseks.

Some of these bills will be prompted by the recent vote in Houston that repealed a LGBT rights law, as well as ongoing fights over transgender students and bathrooms, he said.

State lawmakers are also likely to push religious-discrimination bills, such as Religious Freedom Restoration Act and First Amendment Defense Act (FADA), said Eunice Rho, ACLU advocacy and policy counsel.

However, gay rights activists can defeat these kinds of measures. In 2015, state lawmakers introduced 90 bills and, except for those in Arkansas, Indiana and Michigan, all were defeated, said Ms. Rho.

Legal battles are also underway to ensure that bakers, florists and people who rent wedding venues must serve same-sex couples, said Ria Mar, staff attorney with the ACLU’s LGBT and HIV/AIDS Project.

These cases, as well as those of officials like Kentucky clerk Kim Davis trying to evade their duties regarding gay couples, are unlikely to prevail. “Courts have consistently rejected the notion that religious belief can be used to discriminate in violation of the law,” Ms. Mar said.

Other battlegrounds include bills allowing religious adoption agencies to reject or discount applications from gays and lesbians, and policies that force colleges and universities to officially recognize — and fund — religious student groups whose membership policies discriminate on issues like sexual orientation, the ACLU leaders said.

Separately, the Human Rights Campaign (HRC) has taken aim at religious schools seeking exemptions from federal law.

At least 56 religious education institutions have asked to not comply with federal law if it “would conflict with specific tenets of the religion,” the HRC said in a Dec. 18 report, “Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk.”

Some 120,000 students attend these schools, the advocacy group said.

Another battleground involves so-called “conversion therapy,” in which therapists try to change the sexual orientation of gay youth or adults.

Rep. Ted Lieu, California Democrat, has already introduced a federal bill to ban such therapy for minors and adults nationally. The District and four states — California, Oregon, Illinois and New Jersey — have already enacted therapy bans, and at least 16 state legislatures saw bans introduced last year, according to the #BornPerfect campaign at the National Center for Lesbian Rights.

Traditional values push back

Opponents of same-sex marriage are digging in for a long culture war — starting from the premise that the narrow, 5-4 Obergefell ruling is itself fatally flawed.

Society will be harmed if it cannot hold out as normative “the only type of human relationship that every society must cultivate for its perpetuation,” said a statement by the American Principles Project, founded by Princeton University legal scholar Robert P. George and signed by 72 academic and legal scholars.

For multiple reasons, the Obergefell ruling “must be judged anti-constitutional and illegitimate” and “treated as such by other branches of government and by citizens of the United States,” the statement said.

In Rowan County, Kentucky, clerk Kim Davis captured headlines after she refused to issue marriage licenses because of her Christian faith, and was sent to jail for five days.

Mrs. Davis met Pope Francis in September and received a rosary from him as well as advice to “stay strong.” The pontiff further said that all people, including public officials, have the right to conscientious objection to unjust laws.

Mrs. Davis is still in a court battle over the marriage applications, but Matt Bevin, Kentucky’s incoming governor, has pledged to remove the personal names of country clerks from marriage licenses.

Elsewhere, two judges in Oregon, citing religious beliefs, have indicated they do not wish to officiate at gay marriages, while judges in Alabama are also contesting the federal mandate for them to issue marriage licenses for same-sex couples.

The American Principles Project, and such allies as Heritage Action for America and FRC Action, have already secured support for FADA from at least six Republican presidential candidates, including Sen. Ted Cruz of Texas, Sen. Marco Rubio of Florida, Ben Carson, Carly Fiorina, former Sen. Rick Santorum of Pennsylvania and former Arkansas Gov. Mike Huckabee.

Donald Trump, former Florida Gov. Jeb Bush, Sen. Lindsey Graham of South Carolina and Sen. Rand Paul of Kentucky have “expressed public support” for FADA, but not signed the pledge, the project said Dec. 17.

Traditional values groups will also fight the addition of “sexual orientation and gender identity” into civil rights laws, saying that these vague designations will be used as a weapon to threaten the First Amendment rights of religious people.

In addition, groups such as Parents and Friends of Ex-Gays and Gays and Equality and Justice for All, which count former homosexuals as leaders and members, will keep pushing back against “conversion therapy” bans, saying therapists cannot “convert” anyone but can help people reduce or escape unwanted same-sex attractions.

The bottom line for traditional marriage supporters, Heritage Foundation scholar Ryan T. Anderson told a Hillsdale College event this fall, is that they must now follow in the footsteps of pro-lifers, who have battled the 1973 Roe v. Wade abortion ruling for more than 40 years.

Remember that Obergefell “is not the last word about marriage, and we are going to do whatever we can to restore a sound understanding of marriage into our law and into our policy, ” he said.