A SCOTUS Ruling, Marriage Equality, and the Hobby Lobby Law Walk Into a Bar

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On April 28th, the Supreme Court of The United States will begin hearing oral arguments in the appellate-level marriage equality cases. There are 12 couples and two widowers at the heart of the litigation, hailing from Ohio, Kentucky, Michigan, and Tennessee – states that currently don’t allow or recognize same-sex marriage.

While an overwhelming percentage of Americans support federally-recognized same-sex marriage (63% according to a 2015 CNN/ORC poll – enough to constitute a “supermajority”), the conservatives and members of the Religious Right are already brandishing their weapon of choice: self-serving rhetoric. On The O’Reilly Factor, Bill O’Reilly and Fox News contributor/First Baptist Church Dallas Pastor Robert Jeffrees discussed the upcoming case and how it will likely affect Americans should the aftermath fall in favor of the “homosexual agenda.”

“I believe that if the Supreme Court, as expected, enshrines gay marriage as a constitutional right, I believe it’s truly going to be, to use your phrase, ‘open season on Christians and those who believe in traditional marriage’,” said Jeffrees. “Because once you make gay marriage a civil right, then anyone who opposes it is guilty of a civil rights violation and I think you’re going to see government coming after churches like mine.”

I’d like to pause and consider that last part of Pastor Jeffrees’ statement: “…I think you’re going to see government coming after churches like mine.” Because it brings to light one concern to which I’ve been devoting a lot of time, energy and thought: the Religious Freedom Restoration Act. I’m curious: If SCOTUS votes in favor of marriage equality, won’t we see a massive uptick in federal RFRA cases? Because it worked out mighty well for conservatives in the Burwell v. Hobby Lobby case – the one in which the government ruled in favor of religious freedom and churches.

To figure this out, I spoke to John Lewis, the Legal and Policy Director of Marriage Equality USA, who had this to say about the matter: “The interplay between the federal RFRA (or state RFRAs), the Hobby Lobby decision – all statutes – and the federal constitutional guarantees against discrimination is a bit complicated. In the Hobby Lobby decision the Supreme Court stated that RFRA would not permit religious exemptions from laws that prohibit race discrimination in employment because there is a compelling government interest in stopping race discrimination. We argue that there also is a compelling government interest in stopping sex discrimination, sexual orientation and gender discrimination and many other forms of discrimination. If the Supreme Court rules in favor of marriage equality nationwide… it will make it much more difficult for opponents of equality to defend discrimination against LGBT people through RFRA statutes.”

First of all, Pastor Jeffrees’ fear – that the government will soon be “coming after” his church or other churches (or religion in general) – is not what the SCOTUS trial is about. At all. It’s about the civil rights of human beings. But arguments like Jeffrees’ exhibit precisely where gay marriage and the Religious Freedom Restoration Act do butt heads in a federal perspective.

Here’s an example: John G. Kallam Jr., of Eden, North Carolina was an appointed county magistrate of Rockingham County. According to an article published by The New York Times on April 22, Kallam resigned from the post because a federal judge overturned North Carolina’s ban on gay marriage, thus requiring him, as a county magistrate, to perform gay marriages. So he stepped down – one of six in the state to do so.

But remember, as John Lewis put it, “In the Hobby Lobby decision the Supreme Court stated that RFRA would not permit religious exemptions from laws that prohibit race discrimination in employment because there is a compelling government interest in stopping race discrimination.” What members of the LGBTQ community simply want is the same level of recognition – only stated as a “compelling government interest in stopping sexual identity and sexual orientation discrimination” when it comes to the institution of marriage.

(It should be noted here that, as Lewis also mentioned, the clause should also include “sex discrimination.” Since it did not specifically apply to sex discrimination in the Hobby Lobby v. Burwell case, members of SCOTUS saw fit to side with Hobby Lobby, thereby promoting sex discrimination in the form of denying female employee’s access to employee-benefit-provided birth control.)

It is expected that SCOTUS will rule in favor of marriage equality. And if that is the case, gay marriage opponents will likely start to promote a new issue – provisional “opt-out” proposals that will protect conservative religious officials who want to avoid involvement in same-sex weddings.

Sound familiar?

Gerald Rosenberg, a political scholar and strategist at The University of Chicago told The New York Times that “[s]uch ‘opt out’ proposals may produce political heat, as recently seen in Indiana and Arkansas, where the governors, under pressure from businesses, felt compelled to weaken so-called religious freedom bills. But they will not impede the ability of gay couples to marry.”

Regardless of the expected conservative backlash, the swift, positive change in public opinion and governmental action in recent years must certainly be a sign of something. As John Lewis so eloquently put it in an email, “If the Supreme Court rules in favor of marriage equality across the country (and even better also makes a broad statement about constitutional protections for LGBT people more generally) it will be a major step forward for the movement for LGBT equality.”

We couldn’t agree more.

Marriage Equality’s John Lewis says, “Equally [important], the marriage equality cases provide the Supreme Court a golden opportunity to recognize that governmental discrimination against LGBTQ Americans in any form offends the equality guarantees of the Constitution, and that the Constitution ensures LGBTQ Americans the right to live free from their government treating them as less than equal in any way because of who they are or whom they love.”

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Abby Higgs

Abby Higgs lives in Baltimore, Maryland, which is not as bad of a place as National Geographic makes it out to be. In 2012, she received her MFA in Creative Writing & Publishing Arts from The University of Baltimore. When she's not writing, she's carefully applying anti-bacterial hand gel up and down her extremities to ward off all of the germs. More of her words appear here: www.slowclapabby.com.

Abby has written 4 articles for us.


  1. This whole thing is so nerve-wracking! The RFRA side of this didn’t occur to me. Thanks for making me think about it.

    PS – I see you’re a Baltimorean. Me, too. I hope you’re safe right now!

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