Dissenting Judges Fear Lack of Religious Freedom Protection in Supreme Court's Gay Marriage Ruling

The Supreme Court ruled with a 5-4 vote that same-sex couples are guaranteed a right to marry under the Constitution on Friday morning.

For religious individuals, this raises questions on the boundaries of their religious freedom in regards to practicing their faith in accordance with what they religiously believe about marriage.

The majority opinion, written by Justice Anthony Kennedy, spends a brief paragraph to mention the religious implications of today's ruling, out of over 27 pages total:

"... it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex."

Chief Justice John Roberts, who read his dissenting opinion in court, said this was an inadequate mention of religious protections in the majority opinion.

"The majority graciously suggests that religious believers may continue to 'advocate' and 'teach' their views of marriage," Chief Justice Roberts pointed out. "The First Amendment guarantees, however, the freedom to 'exercise' religion. Ominously, that is not a word the majority uses."

Jutice Roberts goes on to mention the problems that may arise in religious organizations including religious schools and religious adoption agencies.

"There is little doubt that these and similar questions will soon be raised before this Court," he wrote. "Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today."

Similarly, Justice Clarence Thomas wrote in his dissenting opinion (to note, all four dissenting judges wrote separate opinions), that the majority's decision has "potentially ruinous consequences for religious liberty."

"[The majority] makes only a weak gesture toward religious liberty in a single paragraph," Justice Thomas wrote. "And even that gesture indicates a misunderstanding of religious liberty in our Nation's tradition."

"Religious liberty is about more than just the protection for 'religious organizations and persons ... as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.' Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice."

Justice Samuel Alito mentioned the implications this decision may have on a social level for those who oppose same-sex marriage.

"The majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected," Alito wrote in his dissenting opinion. "We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools."

These dissenting judges are joined by religious leaders who are fearful of the implications today's decision has for the future in terms of religious liberty. Albert Mohler, the president of the Southern Baptist Theological Seminary, wrote that this decision "has placed every religious instituion in legal jeopardy if that institution intends to uphold its theological convictions limiting marriage to the union of a man and a woman," and added that the "threat is extended to every religious citizen or congregation that would uphold the convictions held by believers for millennia.

Legal experts are divided on just how deeply this decision will affect religious freedom. Some scholars argue that "there is no federal law banning discrimination based on sexual orientation," and that the states that do have such laws "have at least some protections for religious groups written into their anti-discrimination statutes," according to a Pew Research Center report.

Robert Tuttle, a religion and law professor at George Washington University, told Pew, "After all, we still allow institutions, like universities, to discriminate based on gender."

Ultimately, the "backlash" of today's ruling "will be known only as it unfolds," Lyle Denniston, a reporter of the SCOTUSblog, wrote.

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