The Supreme Court Finds a Right to Homosexual Marriage (2)

Previous article in this series: December 1, 2015, p. 140.

In the last article, we examined the United States Supreme Court’s ruling in Obergefell v. Hodges, which found that homosexuals are guaranteed a right to marry by the Fourteenth Amendment to the Constitution. We examined the way in which the Court reached this conclusion. In this and a future installment, we will look at the implications of that ruling for believers, as well as some measures that religious organizations such as churches and schools can implement to protect themselves.

As mentioned previously, the Court in Obergefell did not create a right to homosexual marriage, but instead found that this right already existed in the Fourteenth Amendment to the Constitution and that laws contrary to this right were illegal. While that distinction may seem to be merely a matter of semantics, it does have practical implications. People from both sides of the religious and political spectrum have stated that the rulers have spoken, and we must obey by submitting to this ruling or by resigning positions that would cause us to violate our consciences. For instance, shortly after the Supreme Court’s ruling, media attention was focused on Kim Davis, a district court clerk in Kentucky, who refused to issue marriage licenses and was ultimately sent to prison for several days for her refusal. Even many Christians suggested that she must resign her position in light of the Court’s ruling.

The idea that the Court’s ruling is a mandate that we must obey is contrary to our system of government, under which the Court cannot legally create rights or freedoms or legislate, but only protects those rights that already exist under the Constitution or other laws. This is the reason the Supreme Court “found” the right to homosexual marriage under the Fourteenth Amendment.

Under our system of laws, now that the right to homosexual marriage has been found to exist, that right is simply one right that must be weighed against competing rights. In the case of homosexual marriage, even the liberal majority on the Supreme Court recognized that people may still oppose homosexual marriage for religious reasons, stating:

Finally, 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. 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, and to their own deep aspirations to continue the family structure they have long revered.1

Freedom of religion is a First Amendment right, and when First Amendment rights are implicated, courts usually analyze whether reasonable accommodations can be made for sincerely held religious beliefs. In the case of the Kentucky court clerk, we will assume for the sake of argument that her actions were based on sincerely held religious beliefs. Some news accounts indicated that she was not willing to issue marriage licenses because they were issued under her name as clerk and she did not want to appear to condone homosexual marriage. These news accounts indicated that she was willing to issue them in the name of the state. The question is whether it would have been a reasonable accommodation to change the marriage licenses to accommodate her religious beliefs. The newly recognized right to homosexual marriage will conflict with the First Amendment rights of traditional Christians to the free exercise of their religion, and neither of those rights will be absolute.

Some might still question whether it is appropriate for a Christian individual or organization to attempt to assert our legal rights in opposition to laws that are contrary to their faith, such as those providing equality for homosexuals. However, as Article 28 of the Church Order demonstrates, consistories are required to take measures that allow them to claim the protection of the authorities. That Article reads:

The consistory shall take care that the churches, for the possession of their property and the peace and order of their meetings, can claim the protection of the authorities; it should be well understood, however, that for the sake of peace and material possession they may never suffer the royal government of Christ over His church to be in the least infringed upon.

Article 28 has often been interpreted in modern times as requiring that a local congregation’s status as a legal corporation be maintained so that it can defend itself in court or assert its rights if necessary. However, the history of this Article shows that the Reformed fathers intended that consistories use whatever means available to preserve the ability of the church to maintain the ministry of the Word over against the forces of the world that would seek to silence the truth of the Word.2

This Article requires that we obey the civil government, but that we use the means available to see that the rights of the church are also protected. As has been stated before in relation to Article 28:

The duty of the consistory, now, is to “claim” these rights. The consistory is to secure official government recognition (legal standing) for the congregation with the state. The consistory is to do what is necessary to see to it that the lawful rights of the congregation are honored.3

The issues surrounding the recognition of legal rights for homosexuals are far-reaching. If the churches and schools do not take measures as necessary to claim their legal rights, the failure to assert those rights may result in interference in the instruction of our children or even in matters of preaching and church discipline. As has been written before in regard to Article 28:

State domination over the church may never be tolerated. The state does not have, and may not be permitted to exercise, ecclesiastical authority. The church may never tolerate state interference in the spiritual and internal affairs of the church. The state has no right of supervision of the official work of the officebearers. The state is not to regulate the faith and life of the church. The state is not to involve itself in the exercise of Christian discipline. The state is not to become entangled in the official labors of the consistory, the classis, or the synod.4

Article 28 requires that consistories take measures as necessary to allow the churches to avail themselves of the legal protections that our heavenly Father has providentially provided.

With regard to modern issues such as homosexual marriage, the threat to the churches’ autonomy comes not only from the government, but also from individuals who may seek to use government institutions to restrict the teachings of the church. Homosexuals are on their way to becoming a protected class that is guarded from discrimination by government laws and government institutions. However, homosexual individuals also have gained legal standing by which they can attack churches, schools, and individual believers for opposition to their lifestyle. We must position our churches and schools, not to rebel against any laws or those in authority, but to avail ourselves of the protections that we have under the law, which the same authorities are also bound to protect.

We have discussed the need for churches to be prepared to assert their rights against the attacks of groups such as homosexuals, but the need for action to protect our schools is even greater. Our churches enjoy some measure of protection by virtue of the fact that they are clearly religious institutions subject to the protection of the First Amendment. Traditionally, state and federal courts have deferred as much as possible to the decision of ecclesiastical assemblies in matters of property rights, employment of ministers, and church discipline. While all churches are religious institutions, not all schools are. For example, the public schools are required by law to avoid being religious institutions. We, on the other hand, see our schools as extensions of the home in which we try to ensure that our children are instructed in all subjects in accordance with the same doctrines taught in the church. As such, the instruction of our schools should also be entitled to a degree of religious freedom. However, even greater care is needed for school boards to assert those legal rights in the face of opposition from the world around us.

In the next installment of this series, Lord willing, we will look at specific measures that can be taken to aid our churches and schools in asserting the right to religious freedoms granted under the Constitution.