On June 26, 2015, five unelected lawyers at the U.S. Supreme Court acted as a super-legislature mandating same-sex marriage in all 50 states. In a dissenting opinion, Justice Clarence Thomas noted that “35 states have put the question to the people themselves. In 32 of those 35 states, the people have opted to retain the traditional definition of marriage.” Yet, in a razor-thin 5-4 majority, the court eviscerated thousands of years of historical understanding of marriage. The late Justice Antonin Scalia described the decree as an act of “hubris” usurping the role of the people.
As the court redefined marriage, several justices warned that religious liberties would suffer for those holding to historical, traditional, Biblical beliefs about marriage. The majority opinion written by Justice Anthony Kennedy revealed a brief glimpse of light, paying homage to the long-held, revered understanding of marriage holding civilizations together for millennia. Kennedy wrote: “This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” He continued: “It must be emphasized that religions, and those that 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 principles that are so fulfilling and so central to their lives and faiths.”
But in 2021, we still don’t know whether the court will properly protect the religious liberties of “religious organizations and persons.”
The court’s redefining of marriage created a vulnerability for individuals and ministries who follow sincerely held religious beliefs about marriage and human sexuality. With uncertainty, the faithful wait to see if that vulnerability will be remedied by the court giving substance to Kennedy’s words. To date, the court appears unwilling to bring clarity to conflicting worldviews. The question is simple: Are Christians and Christian ministries in our country allowed to live by and serve according to their utmost convictions about marriage and sexuality? The Supreme Court continues to find creative ways to avoid clearly answering the question.
Christian views on marriage and sexuality should not surprise anyone. The satirical news website The Babylon Bee captured this concept in the headline “Bombshell Report Reveals Christian Believes Christian Things.” Scripture is exceedingly clear on standards for marriage and sexuality. Will the Supreme Court ever make it clear that followers of Christ can live according to those Biblical standards? Will the court once again give the First Amendment’s religious free exercise clause its original and intended authority? We don’t know.
Consider Fulton v. City of Philadelphia, decided by the court a few months ago. In Fulton, Catholic Social Services (CSS) followed a policy of not placing foster children with unmarried couples or same-sex couples per Catholic teachings. Dozens of foster care agencies in Philadelphia placed children with same-sex couples. Despite access for same-sex couples, the city told CSS to either place children with same-sex couples or lose its ability to assist foster children. Deny your convictions, or else. In what appeared to be a historic religious freedom victory, a unanimous 9-0 court concluded the city had violated religious free exercise rights of CSS based on a contract technicality.
But if the Fulton decision was a decisive, clarifying win for religious free exercise, why did Justices Samuel Alito, Clarence Thomas and Neil Gorsuch join in a 77-page lament chiding the court for not giving religious free exercise its due? Why did Justice Gorsuch question the “fortitude” of the court to fix a problem it created by not giving religious free exercise its original meaning and weight? Gorsuch wrote: “We owe it to the parties, to the religious believers and to our colleagues on the lower courts to cure the problem this court created.” The problem the court did not fix involved its failure to overrule a precedent that neutered religious free exercise, leaving religious persons and organizations uncertain where the court stands.
Justice Alito rightly noted that by deciding the case on a technicality, instead of clear religious free exercise grounds, the city could fix the technicality and force CSS right back in court. Alito wrote, “This decision might as well be written on the dissolving paper sold in magic shops.” Alito expressed dismay that after a half-year and 2,500 pages of briefing, the “court has emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” Gorsuch complained that this indecision not only wastes the time of CSS but “individuals and groups across the country will pay the price—in dollars, in time and in continued uncertainty about their religious liberties.”
The court’s unwillingness to clarify whether Christians have the freedom to live out Christian teachings arose in the Masterpiece Cakeshop case, where a narrow holding protected cake artist Jack Phillips primarily because a Colorado commission exhibited open hostility toward religion and did not act with religious neutrality. Unsurprisingly, the peaceful, humble baker is already back in court.
And while it seems absurd that a charity of nuns should ever be forced to include abortion-inducing drugs in their health plan, there is a chance that Little Sisters of the Poor will head to the Supreme Court a third time because the court never decided with certainty that the First Amendment requires that they have a religious exemption.
Why these narrow decisions that fall short of honoring religious free exercise protections spelled out in the First Amendment? Some speculate that Chief Justice Roberts prefers creeping incremental changes in precedent. Others note the desire to avoid taking sides in the religious freedom clash with progressive sexuality. Or is the court swayed by threats of court packing?
In Fulton, Gorsuch implied the justices lacked the fortitude to give due weight to the religious free exercise clause. Justices Brett Kavanaugh and Amy Coney Barrett disappointed religious liberty advocates when they refused to join Alito, Thomas and Gorsuch in giving proper weight to religious free exercise in Fulton and in refusing to accept florist Barronelle Stutzman’s case, leaving her exposed to financial ruin.
Despite the court’s shortcomings on protecting religious liberties, we rejoice that God’s Word cannot be chained (2 Timothy 2:9). And as John Stonestreet, the president of the Colson Center for Christian Worldview, constantly reminds us, in the midst of cultural confusion and upheaval, “Christ is Risen!” Whatever the circumstances, we can give thanks.
Todd Chasteen is Samaritan’s Purse vice president of public policy and general counsel.