On Religion: After Justice Kennedy, SCOTUS Still Wrestles With Faith And Culture Wars

 

(ANALYSIS) Supreme Court Justice Anthony Kennedy retired in 2018, but religious-liberty activists still want to know where he hoped to draw a bright line between religious freedom and the sexual revolution.

Kennedy knew that the First Amendment's declaration that government “shall make no law ... prohibiting the free exercise of religion” was creating warfare in modern American law and politics. But he didn't know how to end the strife.

In his majority opinion in the court's 5-4 Obergefell v. Hodges decision legalizing same-sex marriage in 2015, Kennedy stressed that many Americans opposed this change because of "decent and honorable religious or philosophical premises," and he denied that "their beliefs are disparaged" in the ruling.

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“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,” he wrote. “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.”

Since then, the Supreme Court has issued important rulings clarifying the rights of churches, denominations and ministries with clearly stated doctrines on sex, gender and marriage, noted Stanley Carlson-Thies, who recently retired as head of the Institutional Religious Freedom Alliance, which he founded in 2008 as part of the nonpartisan Center for Public Justice. He also assisted the administrations of George W. Bush and Barack Obama with issues linking faith and public life.

“The court knows that the freedom of religious expression is more than worship alone,” said Carlson-Thies, reached by telephone. “But where will the court draw the line, especially with religious individuals who own businesses that deal with the general public? ... That’s the mystery. Everyone knows the court needs to do something. These issues are not going away. ... But it isn't clear that everyone thinks the Supreme Court should have the last word on everything. You hear that argued on the left and the right -- depending on who controls the White House.”

Carlson-Thies noted several strategic rulings — in 2018, 2023 and this summer — in which the court addressed the religious-liberty claims of individuals.

The first was Masterpiece Cakeshop in 2018, a case focusing on Jack Phillips' claim that he could refuse, for religious reasons, to create a unique wedding cake for Charlie Craig and David Mullins. The 7-2 majority said the Colorado Civil Rights Commission showed obvious hostility to the beliefs of Phillips. The baker had offered to sell Craig and Mullins cookies, cakes and other items for their wedding reception, but not a personalized cake with artistic content celebrating their same-sex marriage.

However, Kennedy once again sidestepped First Amendment issues, stating that laws can and must "protect gay persons and gay couples," while “religious ... objections to gay marriage" are also "protected views and in some instances protected forms of expression.” He admitted that the "outcome of cases like this in other circumstances must await further elaboration in the courts.”

Then, in its 303 Creative decision in 2023, the high court ruled, 6-3, that Colorado violated the First Amendment rights of a website designer by requiring her to design, write and publish -- in violation of her Christian beliefs -- a website celebrating a same-sex wedding.

Finally, with its Mahmoud v. Taylor ruling on June 27, the Supreme Court ruled, 6-3, that educators in Montgomery County, Maryland, had to give parents — Muslims, evangelical Protestants, Eastern Orthodox Christians and others — the option to pull their elementary school children out of class sessions with LGBTQ+ readings and similar activities. The interfaith nature of that coalition was significant, noted Carlson-Thies.

Kennedy knew the Supreme Court would face more religious-liberty cases of this kind, featuring clashes between trends in modern culture and the First Amendment rights of believers defending centuries of religious doctrines.

“Many people in our government and in our culture seem to have given up on our traditions of First Amendment liberalism and religious liberty,” said Carlson-Thies. “That is making it easier for enemies of that old, traditional kind of liberalism -- enemies on both the left and the right -- to attack those very principles. When that happens, it's a great tragedy in American life.”

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Terry Mattingly is Senior Fellow on Communications and Culture at Saint Constantine College in Houston. He lives in Elizabethton, Tennessee, and writes Rational Sheep, a Substack newsletter on faith and mass media.