Reporters should ponder what religious left is telling the Supreme Court about marriage

On April 28, the U.S. Supreme Court will hear those same-sex marriage cases from Kentucky, Michigan, Ohio, and Tennessee. Proponents of redefining marriage are confident they’ll win in June. If so, that will be a decisive -- and divisive -- juncture for organized religion in America and frame competing religious liberty claims the media will be covering in coming years.

A previous Religion Guy Memo advised journalists to examine  the “friend of the court” briefs in these historic cases. The religious arguments for traditional marriage are familiar,  perhaps especially for GetReligion readers. But now that all the briefs are filed, newswriters should consider the somewhat less publicized religious argument on the opposite side.

The key brief comes from the Episcopal Church’s bishops in these four states (.pdf here) with the president of the Episcopal House of Deputies, the United Church of Christ, the Unitarian Universalist Association, Judaism’s three non-Orthodox branches, a dozen pro-gay caucuses and 1,900 individuals.

Though there’s strong religious support for marriage traditionalism, these gay-marriage proponents insist they’re also part of the religious “mainstream,” noting that the United Church and Unitarians stem directly from New England’s Puritans and Pilgrims. The Episcopalians likewise have colonial roots. The brief also cites recent ideological support from the large Evangelical Lutheran Church in America and Presbyterian Church (USA), though they didn’t join the brief.

Americans have increasingly positive feelings toward gays, and the brief cites data on this from the Public Religion Research Institute. Not mentioned is that the institute’s most recent survey  (2013) also showed impressive  percentages saying same-sex marriage goes against their religious beliefs: white “evangelical” Protestants 78 percent, black Protestants 61 percent, all Catholics 53 percent, all Americans 51 percent and white “mainline” Protestants 45 percent -- with only 26 percent of non-religious citizens.

These liberals argue that “fundamental principles of both equal protection and religious freedom” require nationwide legalization of gay marriages. The brief says if liberals win, the Supreme Court won’t “ ’take sides’ with one religious view against another” because all faiths “remain free to define religious marriage however they wish” and to avoid same-sex weddings.
Mainly for that reason the brief discounts traditionalists’ “amorphous concerns about ‘religious liberty’.” Otherwise, it says courts will apply already existing public accommodation and employment laws when religious organizations or individuals “operate in commercial or governmental spheres.”

For instance, the group notes, the New Mexico Supreme Court decided Elane Photography had no right to refuse coverage of a gay wedding on religious grounds, and the U.S. Supreme Court declined to review this. (Importantly, the handful of such conservative merchants  don’t discriminate against gay customers except with weddings.)

Assuming a liberal win, for journalists this is the most important future aspect of what the Supreme Court says. The Seventh-day Adventist Church takes no side on gay marriage as such but sees “wide-ranging implications for religious liberty” and asks the justices to make “accommodations for sincere religious objections.”

A brief from First Amendment scholars Thomas Berg and Douglas Laycock advocates the right to  gay marriage but asserts in fairness the Supreme Court must also protect the rights of conscientious objectors. Despite recent news about those wedding merchants they focus on matters like counseling services, housing at religious schools, religious employment, provision of spousal benefits, adoption placement, religious camps, day care, professional licensing, school accreditation, government contracting, access to public facilities and --  eventually – threats against tax exemption.

The brief from the U.S. Catholic bishops predicts that if the Supreme Court rewrites the law of marriage, this will “create church-state conflict for generations to come.”

For religion reporters, it’s cram time on First Amendment law, especially the Bob Jones University precedent on tax exemption. That's the domino that insiders are watching, with the state deciding, again, when religious doctrines are acceptable and when they are not -- the ultimate church-state collision, with state-approved doctrines forming a new American creed.

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