The Supreme Court decision affirming same-sex marriage as a constitutional right set off celebrations across the country, not least among Jews, many of whose Facebook photos – like the White House itself – were soon overlaid with the multi-hued stripes associated with gay rights. But while it was widely reported that Orthodox Jews continued to oppose the legal redefinition of marriage, what was less reported was how fearful the Orthodox are. Not so much from the redefinition of brides and grooms but from the redefinition of bigotry and traditional religion.
Could yeshivas or Orthodox organizations become ineligible for government grants, face discrimination suits, or lose their tax exemption? Beyond legality, could Orthodoxy be branded with the stain of “bigotry,” regardless of any kindness rabbis extend to gay Jews?
Agudath Israel, a yeshivish and chasidic umbrella group, released a statement saying they were “concerned” that “traditional communities like the Orthodox… may incur moral opprobrium and risk tangible negative consequence if they refuse to transgress their beliefs, and even if they simply teach and express their religious views publicly. That prospect is chilling … .”
The centrist Orthodox Union was equally apprehensive. Even as “we condemn discrimination against individuals” and “do not expect that secular law will always align with our viewpoint,” the question now turns to religious rights, they wrote in a statement, asking whether “the expansion of civil rights for gay Americans will “contain appropriate accommodations and exemptions for institutions and individuals who abide by religious teachings that limit their ability to support same-sex relationships?”
Obergefell v. Hodges, the case deciding gay marriage, will not be where it ends. During the oral arguments, Justice Samuel Alito cited the court’s 1983 ruling that Bob Jones University, a fundamentalist Christian school, could be stripped of its tax-exempt status because of the school’s policy against interracial marriage. Alito asked Solicitor General Donald B. Verrilli Jr., the administration’s lawyer for gay marriage, if he could imagine religious institutions losing their tax exemptions over refusing rights and privileges to same-sex couples? Verrilli replied, “I don’t deny that, Justice Alito. It is — it is going to be an issue.”
Even before the government acts, there are those who were thought to be sensitive to religion, such as Mark Oppenheimer, a gay rights supporter who writes the “Beliefs” column on religion for The New York Times, who began advocating for the loss of tax exemptions. Writing in Time.com, Oppenheimer argued, “The Supreme Court’s ruling on gay marriage makes it clearer than ever that the government shouldn’t be subsidizing religion and non-profits. … [The] logic of gay marriage rights could lead to a reexamination of conservative churches’ tax exemptions …”
In another sign that traditional religion will be squeezed, the American Civil Liberties Union said it will no longer defend the Religious Freedom Restoration Act (often used to defend a religious person’s denial of services to a gay wedding), an act passed unanimously by the Senate and signed into law by President Clinton in 1993.
Justice Anthony Kennedy, in his majority opinion supporting the right to gay marriage, wrote that “those who adhere to religious doctrines, may continue to advocate [that] same-sex marriage should not be condoned.” The First Amendment, he noted, offers protection to religious people “as they seek to teach” their beliefs.
However, in his dissent, Chief Justice John Roberts countered, yes, the majority allows that “religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage.” But the First Amendment guarantees the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
What, asked Justice Roberts, will happen when “a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. … There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority [in this case].”
Like Justice Roberts, Abba Cohen, who directs the Washington office for Agudath Israel of America, called the Court’s decision “ominous.”
“When an impression is given that religious views are bigoted and are vilified … once you’re dealing in that kind of atmosphere, you don’t know what kind of disadvantages and disabilities people will suffer,” Cohen said.
Though Justice Kennedy said religious people may continue to “teach” and “advocate,” may they do so outside the walls of a church or shul? For example, in the days following the Court’s ruling, the The Harrisburg (Pa.) Patriot-News announced a new policy: The newspaper “will no longer accept, nor will it print, op-eds and letters to the editor in opposition to same-sex marriage.” In England, a Baptist street preacher was charged with causing “harassment, alarm or distress” by saying on a street corner that homosexuality is a sin. Could that happen here?
Sen. Marco Rubio, Republican presidential candidate, told the Christian Broadcast Network, “We are at the water’s edge of the argument that mainstream Christian teaching is hate speech.” Of course, Orthodox teaching is at that same water’s edge.
Marc Stern, counsel for the American Jewish Committee, which filed an amicus brief in favor of same-sex marriage, said immediate consequences were unlikely at the federal level. But on the local and state levels, there would be challenges, Stern said, especially in areas where the LGBT community has a strong political presence.
“Will a state or city official take the decision to remove a tax exemption? In San Francisco, it’s a possibility. In New York City, it might happen,” said Stern, who was speaking as a legal analyst and not expressing the AJC’s views.
Nathan Diament, the Washington director for the Orthodox Union, said, “We also can anticipate a fight [over] whether institutions must recognize same-sex marriage to participate in government grant programs.”
Agudah’s Cohen wondered whether Jewish adoption agencies might be prohibited from limiting placement to heterosexual couples. In yeshivas, “If you teach what the Torah says about homosexuality, and you admit all kids to your schools [including the children of same-sex parents, or gay students] are you creating a hostile environment?”
After Indiana Gov. Mike Pence signed a controversial religious freedom bill in March, prompting nationwide protests and threats of boycotts, columnist Rod Dreher, a religious Christian, asked in Time magazine, “Is it necessary for the new majority, which has won the culture war, to drive religious dissenters out of the public square as pariahs? … I understand that most liberals view homosexuality as entirely analogous to race. Abrahamic religion does not see it that way. Sexual expression has moral meaning that race does not. …. We may be wrong. But the Constitution gives us the right to be wrong. It is a right so precious it was guaranteed in the First Amendment, alongside free speech [and] like free speech, it matters more when the religious expression is unpopular.”
JTA contributed to this report.