If you follow the history of cases involving freedom of speech, freedom of association and freedom of religion, you know that First Amendment liberalism can get pretty messy. Yes, follow First Amendment liberalism to its logical conclusions and you will end up with some pretty rough stuff, like American Civil Liberties Union lawyers backing the rights of neo-Nazis to march through a Chicago suburb full of Holocaust survivors.
More recently, in the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case, the U.S. Supreme Court ruled -- on a 9-0 vote -- that doctrinally defined organizations have a right under the Free Exercise clause to select their own leaders and workers linked to ministry, broadly defined.
Ah, but what if a doctrinally defined group -- let's say an on-campus fellowship group in a law school -- wanted the right to discriminate against potential leaders who refuse to advocate the group's beliefs on marriage and sexuality? What if a Catholic school wanted to dismiss a religious-studies teacher who married his or her same-sex partner, in violation of 2,000 years of Catholic doctrine?
Like I said, things can get messy.
You can see these First Amendment issues lurking in the background in mainstream news coverage of legislation that is being proposed to protect religious believers and religious organizations in the wake of the 5-4 decision Obergefell decision backing same-sex marriage. Here's an interesting test: In coverage of the proposed First Amendment Defense Act, how quickly does the mainstream coverage you are reading mention the actual name of the bill? How clearly does it define its purpose?
This passage from a recent New York Times piece illustrates these struggles:
Legislation granting protections for tax-exempt organizations and individuals objecting to same-sex marriage on religious or moral grounds is gathering momentum in the House. The bills, drafted by Representative Raúl R. Labrador, Republican of Idaho, and Senator Mike Lee, Republican of Utah, already have 130 co-sponsors. ...


