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Posted on Jun 29, 2015 | 1 comment

Area Lawyer: Religious Liberty Discrimination Coming Soon

Area Lawyer: Religious Liberty Discrimination Coming Soon

The Supreme Court declared that the 14th Amendment to the Constitution makes same-sex marriage a right. But under the "Equal Protection" clause or the "Due Process" clause? The Court didn't say -- and the difference is vital.

The Supreme Court declared that the 14th Amendment to the Constitution makes same-sex marriage a right. But under the “Equal Protection” clause or the “Due Process” clause? The Court didn’t say — and the difference is vital.

Kenneth Craycaft, Jr.

Kenneth Craycaft, Jr.

Due Process or Equal Protection? The Answer Matters

The following guest post also appeared in the Cincinnati Enquirer as “Ruling Will Lead to New Discrimination.”

The U.S. Supreme Court decision in Obergefell v. Hodges probably settles the issue of the legality of marriage between two people of the same sex, but it unsettles many other important legal and social issues. And it leaves open the probability of many more profound social changes, some of which are a direct threat to religious liberty.

From a legal perspective, the most disappointing thing about Justice Anthony Kennedy’s majority opinion is how short it is on legal reasoning. The opinion is chock full of hazy moral bromides and dubious philosophical musings at the expense of clear and concise guidance on the scope and limitations of the decision. This is unfortunate. A decision of this importance begs for legal clarity, not dorm-room ruminations. Even supporters of the decision have scratched their heads at the poor (or lack of) legal reasoning.

As a threshold matter, in a decision interpreting and applying the Fourteenth Amendment, the opinion punts on the question of whether it is applying “due process” or “equal protection” clauses. It mentions both, but decides on neither. The distinction is important. Under equal protection analysis, the government may discriminate in some circumstances, but only under a “heightened scrutiny” standard, in which a compelling governmental interest can be shown for the particular law in question. But under “due process” analysis, the right to marriage becomes fundamental to a degree that is virtually untouchable by the law. As a practical matter, this is how Obergefell will be applied by lower courts going forward.

Due process analysis necessarily invalidates legal impediments to other forms of “marriage” than just same-sex unions between two people. Indeed, it removes the ability of the law to define marriage by the number of people wanting to be “joined.” The application of the decision to laws against polygamy have already been seriously debated in the mainstream press, including Slate, The Atlantic and The Washington Post, among others. This is not a hypothetical exercise. It is the next logical step. Counsel for Obergefell was asked expressly during oral argument last April why her position would not lead to invalidating laws against polygamy. She simply begged the question by stating that no states now allow for plural marriage. The social pressure to change that has already begun. The legal pressure will follow almost immediately.

Applying due process analysis also has profound and disturbing implications for religious liberty. By elevating same-sex (or other forms of) marriage to a fundamental human liberty, Obergefell removes the possibility of legitimate moral dissent from such unions. That means that institutions that do not accommodate or endorse same-sex unions will be open to legal and regulatory sanctions. For example, challenges to tax-exempt status for churches that will not perform or recognize same-sex unions will begin almost immediately. Similarly, faith-based universities that do not provide the same housing or other accommodations to same-sex married couples as they do to heterosexual couples will be attacked for failing to protect this fundamental human liberty.

The U.S. Solicitor General was asked during oral argument whether a decision striking down laws against same-sex marriage could lead to the revocation of tax-exempt status for universities that will not recognize same-sex marriage. His answer was affirmative. This means that a person who makes charitable contributions to such schools or churches will not get the tax benefit of deducting that amount from their income for tax calculation. Of course, such contributions will dry up.

Moreover, the same principle can (and will) be applied to deny federal financial aid to students who attend such universities, and to deny federal contracts and grants to them. If same-sex marriage is a fundamental right under the due process clause, the federal government will not support any person or institution that dissents. And regulations disqualifying such universities from direct or indirect federal grants or financial aid will be promulgated in short order by the Obama administration. This is not a hypothetical possibility. The Obama administration has already shown its contempt for religious liberty under Affordable Care Act litigation.

After the Obergefell ruling, the logical next step is federally mandated discrimination against those who are morally opposed to same-sex marriage. The question is not if these things will happen; it is when. And the answer is, almost immediately.


Kenneth R. Craycraft, Jr., is a resident of Milford and an attorney with the Shade Law Group, LLC, Mason. A former professor of Moral Theology at St. Mary’s University in San Antonio, he is the author of The American Myth of Religious Freedom.

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1 Comment

    June 29, 2015 by Catholic League President Bill Donahue

    How the legalization of gay marriage will not be enough to satisfy radical activists:

    There aren’t enough homosexuals to wage war on religious institutions—they comprise only 1.6 percent of the population—but they have plenty of support among elites. From Wall Street to Wal-Mart, the corporate elite has gone lavender, embracing the gay-rights movement with as much gusto as exercised by elites in education, the arts, the entertainment industry, and the media.

    Will they now take the next step and attempt to shut down the churches?

    Anyone who thinks that radical activists will stop with gay marriage is ignorant: The big prize has always been to force the churches to fall in line. Consider Mark Oppenheimer, who writes a biweekly column for the New York Times. His post of June 28, featured at, calls on the IRS to revoke the tax-exempt status of houses of worship.

    The only difference between Oppenheimer and others in the lavender camp is his willingness to put down a marker right after the high court victory. Others will wait. Now if this becomes an issue in the presidential campaign—it is up to those opposed to gay marriage to make it one—it is going to be very hard for Hillary to make Oppenheimer’s case. Even so, this offers little comfort.

    Stealth politics is what the left is good at, and on this issue they will have their unelected surrogates at the IRS do their bidding. There will also be legal challenges—the ACLU sued before trying to shut down the Catholic Church—so keep your eye on left-wing non-profits. Count on Americans United for Separation of Church and State to flex its muscles, along with a host of other militant foes of religious liberty. Surely extremists in the atheist community will relish the fight.

    Religious leaders are going to be pressed on this issue like nothing we’ve seen before. They had better be ready—the other side is.