September 2015 Church & State | Featured

Marriage equality is now the law of the land in the United States – a fact that is not sitting well with the Religious Right.

“From a moral standpoint, 6/26 is now our 9/11,” tweeted Bryan Fischer, a host for the American Family Association’s Family Talk Radio, on the day of the U.S. Supreme Court’s marriage decision. “The rainbow jihadists of [the Supreme Court] blow up twin towers of truth and righteousness. Every advance of the gay agenda comes at the expense of religious liberty. As of today, free exercise is toast.”

Fischer’s hyperbolic analogy of the widespread legalization of marriage equality with the carnage inflicted by terrorists on Sept. 11, 2001, a day that saw the deaths of nearly 3,000 people, is indicative of fundamentalist fears of a coming anti-Christian age in the United States. In fact, Fischer thinks the federal government could one day treat Christians as Adolf Hitler did Jews.

“Just as Hitler bottled up the church of his day inside the four walls of their churches, so the Gay Gestapo will do today,” he said in another tweet. “Hitler had the Jews to blame. The Gay Gestapo has Christians to blame.”  

Although Fischer’s tirade was among the most extreme Religious Right responses to marriage equality, his sentiment is hardly unique. The far right is furious about the high court’s decision in Obergefell v. Hodges, which declared that same-sex couples have a constitutional right to marry in every state. 

In the wake of that 5-4 ruling, religious zealots have made all sorts of threats, from mass resistance to civil war or anything else that will somehow absolve them from acknowledging that gay couples have rights. This has resulted in confusion and heartache for many couples in states that newly recognize same-sex marriages, as clerks, judges and other officials have attempted to resist the Supreme Court’s ruling in the name of “religious freedom.” 

The ruling, written by Justice Anthony M. Kennedy, contained some eloquent passages. Writing of same-sex couples, Kennedy observed, “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply  that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

            But Kennedy’s stirring language did nothing to sway the high court’s conservative bloc of dissenters – Chief Justice John G. Roberts and Justices Antonin Scalia, Samuel A. Alito and Clarence M. Thomas.

            As is his wont, Scalia penned a sharp dissent in which he blasted the majority opinion as a threat to democracy.

“This is a naked judicial claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government,” Scalia wrote in his dissent. “Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Some of the first non-judicial high-profile responses to the marriage case came from governors and attorneys general who were eager to score points with their far-right bases. Texas Attorney General Ken Paxton, for example, claimed that the marriage decision was unconstitutional.

“[T]he United States Supreme Court again ignored the text and spirit of the Constitution to manufacture a right that simply does not exist,” Paxton wrote. “In so doing, the Court weakened itself and weakened the rule of law, but did nothing to weaken our resolve to protect religious liberty and return to democratic self-government in the face of judicial activists attempting to tell us how to live.”

Paxton went on to imply – at least initially – that county clerks and other state employees charged with issuing marriage licenses may be free to disregard the Obergefell decision. 

South Dakota Attorney General Marty Jackley took a similar position. In what he called a “commonsense solution,” Jackley suggested that government employees who object to marriage equality have the right to duck their duty.

“The Supreme Court’s decision and analysis on equal protection and due process must coexist with the constitutional right to freedom of religion,” he said. “And in South Dak­ota, we will work to respect both in compliance with the court’s directive.”

(State officials might want to be careful about taking advice from Paxton. Shortly after the decision, he refused to allow a gay man to list his same-sex spouse on a death certificate. In response, a federal judge ordered him to appear in court on possible contempt charges.)

A handful of governors got in on the defiance spectacle, too. In the end, however, such posturing was little more than a stalling tactic. Louisiana Gov. Bobby Jindal, a GOP presidential candidate, vowed to delay the Pelican State’s compliance with the Supreme Court’s ruling for as long as possible. Mississippi Gov. Phil Bryant also indicated a desire to ignore the marriage ruling for the time being.

“What we’re trying to see now is what our next options may be,” Bryant said June 30. “We just want to make sure that whatever rights the state of Mississippi has we exercise.”

But even Bryant conceded that his fight would likely be fruitless.

“I think this matter has been settled by the Supreme Court,” he said that same day. “I think it’s just a matter of technicalities now.”

One governor, however, was not content with mere rhetoric. Kansas Gov. Sam Brownback did his best to strike at the newfound freedoms granted to LGBT persons. On July 7, Brownback issued executive order 15-05, which purports to prohibit the state from discriminating against religious organizations that hold “the belief or moral conviction that marriage is or should be recognized as the union of one man and one woman,” but in reality sanctions government-funded discrimination. Specifically, the order allows discrimination against LGBT people by religious foster care agencies, homeless shelters, food pantries and other social service entities.

In a press release, Barry W. Lynn, executive director of Americans United, condemned Brownback’s deed.

“Gov. Brownback’s order is a shameful attempt to clothe naked discrimination in the noble garment of religious freedom,” he said. “It’s one of the more extreme overreactions we’ve seen in the wake of the Supreme Court’s ruling on marriage equality.”

When it comes to Religious Right groups, they are of the opinion that a number of doomsday scenarios are seemingly in play now that marriage equality has spread throughout the United States. The evidence for these claims, however, is a bit thin.

“I think we’re going to see the further deconstruction of the family,” Family Research Council President Tony Perkins told the Washington Examiner shortly after the high court’s decision. “We’re going to see the impact on marriage as we’ve seen in some of the Scandinavian countries. It means we’re going to see more children born out of wedlock.”

When asked to back up this dubious data, Perkins was unable to offer much in the way of substance: “[A]ny policy step – like you go back to no-fault divorce – we have seen this escalation in out-of-wedlock births, we’ve seen the de-escalation of marriage rates as a result of policy changes that move away from the historic meaning of marriage.”

The day of the ruling, Focus on the Family (FOF) founder James Dobson, who now runs a group called Family Talk, penned a column warning of dire consequences.

“Many of us will be dragged into court to be prosecuted or subjected to civil judgments,” Dobson wrote. “Some will lose their jobs, while others forfeit their businesses. Some will be persecuted and ridiculed and fined. Some may go to prison as the years unfold. Since same-sex marriage has now been determined to be a universal human right by the highest court in the land, it will trump religious liberty, churches, seminaries, Christian schools, businesses and a host of individual liberties. I also fear that judgment will befall this once great nation.”

Dobson called for a new Constitutional Convention “to set term limits on judges and justices. Another clause would limit the scope of their power. Unelected, unaccountable judges would no longer override the other two co-equal branches of government.”

The FOF founder lauded a statement from the National Organization for Marriage, which said in part, “It is a lawless ruling that contravenes the decisions of over 50 million voters and their elected representatives. It is a decision that is reminiscent of other illegitimate Court rulings such as Dred Scott and Roe v. Wade and will further plunge the Supreme Court into public disrepute. Make no mistake about it: The National Organization for Marriage and countless millions of Americans do not accept this ruling. Instead, we will work at every turn to reverse it.”

Other Religious Right leaders seemed to be in denial about the validity of the Supreme Court’s decision on marriage.

“We should not pretend that it is the rule of law, we should not act like it’s the rule of law,” Liberty Counsel head Mat Staver said in July. “We do need to protect religious freedom – but in the process we cannot accept this ruling as a legitimate ruling as the rule of law. It is not; it is not based on the Constitution – and if it’s not based on the Constitution, it’s just their opinion.”

While some angry Religious Right groups are merely spouting hot air, resistance to marriage equality on the ground was another matter altogether. Nationwide, clerks and judges have refused to issue marriage licenses to same-sex couples under the guise of “religious freedom.” 

One group of clerks seeking First Amendment martyrdom surfaced in Decatur County, Tenn. County Clerk Gwen Pope and employees Sharon Bell and Mickey Butler resigned in the wake of the Supreme Court’s marriage ruling because they were unwilling to obey the law and issue marriage licenses to same-sex couples. 

But not all recalcitrant clerks were willing to simply step down. In Kentucky, a clerk has vowed not to give licenses to same-sex couples, yet he still wants to keep his job. Casey Davis, a clerk in Casey County, said Gov. Steve Beshear is “violating my rights” when he told all clerks they are required to issue marriage licenses to same-sex couples.

“It’s not just me being violated but it’s both side of the coin, both sides of this issue that’s at stake here – and that is our First Amendment rights,” Davis rambled. “We have religious freedom in this country, and if we lose that we’ve lost everything.”

Davis’s so-called solution to the problem would likely cost taxpayers money. He proposed the development of an online system that would allow same-sex couples to receive marriage licenses. At press time Beshear had not weighed in on this idea, but he did tell Davis face to face that he must “[i]ssue marriage licenses or resign’ – those were the words,” Davis told reporters.

At press time, Davis was still holding out.

“I can’t quit…I have a mortgage to pay,” he carped.

Elsewhere in the Bluegrass State, another court clerk has been sued by the American Civil Liberties Union of Kentucky for her refusal to issue marriage licenses to same-sex couples. Rowan County Clerk Kim Davis (no relation to Casey) said her religious beliefs prevent her from issuing the licenses. She is now represented by Staver’s Liberty Counsel, a longtime opponent of marriage equality, and has filed suit herself, claiming a violation of religious freedom.

In Harrison County, Ind., former deputy clerk Linda Summers also filed a lawsuit alleging religious discrimination after she was fired for refusing to serve same-sex couples.

The situation is likely to escalate. Religious Right groups, having lost at the Supreme Court, are falling back on Plan B: prodding as many government officials as possible to resist the ruling. Spurred on by the likes of Paxton in Texas and Jackley in South Dakota, numerous clerks and judges now incorrectly believe they have a “religious freedom” right to avoid job duties that offend their faith.

The situation was chaotic in some states. Perhaps messiest of all was Alabama, where state Supreme Court Chief Justice Roy Moore did his best to do his worst as far as same-sex couples were concerned.

Months before the decision came down in Obergefell, Moore sowed the seeds of confusion when he instructed probate judges not to grant marriage licenses to same-sex couples under a peculiar legal theory that probate judges don’t have to listen to the state attorney general.  This came in response to a federal court ruling that legalized marriage equality in Alabama in February, and it had the effect of causing dozens of judges to either refuse to issue licenses to same-sex couples or to stop giving out licenses completely. At the height of the confusion, 44 of Alabama’s 67 counties defied the federal ruling. (See “Court Jester,” April 2015 Church & State.)

In response, Americans United and its allies, fighting on behalf of five same-sex couples, worked to ensure that Alabama’s probate judges, whose job duties include issuing marriage licenses, obeyed the law. Since the legalization of marriage equality was ordered in the Yellowhammer State before the high court’s marriage ruling, that decision was temporarily put on hold pending the high court’s action. After Oberfegell, AU worked swiftly to cut through the red tape, asking U.S. District Judge Callie V.S. Granade to clarify that marriage equality would be mandatory in Alabama. One day later, July 1, Granade did just that.

But, remarkably, a handful of probate judges continued to hold out. Then-AU Legal Director Ayesha N. Khan told the Montgomery Advertiser, “If any probate judges persist in violating it, we would seek a finding of contempt from the court, which would result in the imposition of fines for every day of noncompliance, an award of attorneys’ fees for litigating the motion, and any remedies the court deems appropriate.”

Under threat of legal consequences, many of the remaining holdouts in Alabama eventually gave up their protests, and AU’s clients in Strawser v. Strange were finally able to marry. This included Albert Pigg and Keith Ingram, who had hoped to marry in Houston County in February but were forced to wait because County Probate Judge Patrick Davenport stopped granting marriage licenses to all couples. Ultimately, Ingram and Pigg were turned away four times before they succeeded.

“It was just a relief that finally Houston County will follow the law and treat all citizens as equal under the law,” Ingram told the news website AL.com July 22.

But not all was well in Alabama more than a month after the Obergefell ruling. The Campaign for Southern Equality reported in late July that 13 counties had taken the remarkable step of refusing to issue wedding licenses to anyone rather than grant them to same-sex couples.

Bibb County Probate Judge Jerry Pow told the Associated Press he has no plans to issue marriage licenses to anyone.

“It’s wrong,” he said. “[Marriage equality] is not what this country was founded on.”

In early July, Americans United sent letters to every state attorney general and to clerks and judges in Texas, South Dakota and Ohio, where some officials refused to comply with the Supreme Court ruling.

“As with an interracial couple, imposing such burdens on a same-sex couple would burden, demean, and stigmatize the couple in a manner that violates the Constitution and other laws. Thus, allowing accommodations in these circumstances would subject government entities and officials to legal liability,” AU advised officials in its letter. 

AU attorneys are also responding to specific cases as reports come in. On July 15, Gregory M. Lipper, AU’s senior litigation counsel, wrote to James R. DePiazza, justice of the peace in Denton County, Texas, after stories surfaced in the media that DePiazza was requiring same-sex couples to fill out a form indicating that they acknowledge that DePiazza doesn’t support marriage equality. It also forbids any photography of the ceremony and prohibits attendees from congratulating the couple.

AU told DePiazza that he must discontinue this practice immediately.

“This demeaning requirement treats same-sex couples as second-class citizens, in violation of the Fourteenth Amendment,” Lipper told the judge. Shortly after receiving AU’s letter, DePiazza removed the objectionable language from the form.

The activities in Texas, Alabama, South Dakota and other states were part of a new Americans United initiative known as Protect Thy Neighbor, which strives to end religion-based discrimination against LGBT persons, non-believers and others. The project launched with a press conference July 7 at the National Press Club in Washington, D.C. (For more on Protect Thy Neighbor, see this issue of Church & State, page 10.)

Unfortunately, the marriage melee is far from over. At press time, Liberty Counsel was still fighting in Alabama to give government employees a right to discriminate against same-sex couples. On July 9, the group asked the Alabama Supreme Court to grant exemptions for public employees who oppose marriage equality. Liberty Counsel’s argument essentially boiled down to one of state’s rights – a matter most people acknowledge was settled by the Civil War.

“There is existing precedent for a state’s highest court to reject an unlawful mandate from the U.S. Supreme Court,” said Liberty Counsel’s Staver in a press release. “The hope of our Constitutional Republic rests upon state officials and American citizens who will refuse to allow five, black-robed judges to rob us of our free, representative form of government. A judicial opinion without constitutional basis is not law and should not be followed by any state or citizen.”

A separate group, the Texas-based Liberty Institute, has been telling state and local officials that they have a right, under the Tenth Amendment, to “nullify” the high court ruling. The assertion is nonsense, but in Oklahoma, state Sen. Josh Brecheen (R-District 6) backed the idea in a recent column that ran in the Durant Democrat.

Even though the Supreme Court had the final word on marriage equality, it is clear the fight over this issue will linger. Still, the Religious Right should not be afforded the opportunity to ruin one of the watershed moments in American history simply because it hollers so loudly. With that in mind, the focus should be on the likes of Gary Wright, one of Americans United’s plaintiffs in Strawser v. Strange. Wright, a disabled U.S. Navy veteran who is now able to marry his partner, Brandon, said he is overjoyed the United States finally bestowed dignity on same-sex couples.

“The Supreme Court’s ruling vindicates the principles of liberty and equality that I sought to defend when I enlisted in the service,” Wright said in a “Wall of Separation” blog post. “The Supreme Court has finally recognized and declared to the world what Brandon and I already know: our love for one another is no different – and no less worthy of legal recognition and protection – than any other couple’s.”