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The Supreme Court Quietly Gives Religious Liberty a Big Win

by The Daily Signal | 3.27.18

Monica Burke / @MonicaGBurke / January 16, 2018

Monica Burke is a research assistant in the DeVos Center for Religion and Civil Society at The Heritage Foundation.


Religious liberty and freedom of conscience won big at the Supreme Court last week, just in time for Religious Freedom Day on Jan. 16.

The justices declined last week to hear a legal challenge against a Mississippi law that protects citizens, small businesses, government employees, and charities from official discrimination by government if they believe that marriage is between one man and one woman.

The Mississippi law benefits people on both sides of the marriage debate because when a government can punish one group of citizens for dissenting from cultural orthodoxy, it can punish any group for any belief.

In declining to hear a case against Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act (HB 1523), the Supreme Court let stand the 5th U.S. Circuit Court of Appeal’s decision in the face of challenges by the ACLU and Lambda Legal.

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Now a year after HB 1523 was passed, Mississippians know they are free to live according to their religious beliefs about marriage without fear of losing their livelihoods.

It’s a victory in a battle that never should have happened in the first place. HB 1523 was a direct response to the threat of anti-religious discrimination after the Supreme Court redefined marriage in Obergefell v. Hodges.

During oral arguments for Obergefell, Obama administration Solicitor General Donald Verrilli was asked whether religious institutions could lose their tax-exempt status owing to their beliefs about marriage.

“[I]t’s certainly going to be an issue,” he told the court. “I don’t deny that.”

Although Justice Anthony Kennedy wrote in his majority opinion in Obergefell that those who believe that marriage is between a man and a woman do so based on “decent and honorable premises” and that “neither they nor their beliefs are disparaged here,” Verrilli’s comments told a different story.

Verrilli’s remarks signaled that the government could use its powers to tax and spend to force its views of marriage upon citizens.

In the two and a half years since Obergefell, activists, local and state governments, and federal authorities have treated the belief that marriage is between one man and one woman with contempt.

Billionaire LGBT activist Tim Gill pledged to “punish the wicked.” Delivering upon his threat, government authorities have denied citizens across the country the right to live in accordance with their beliefs about marriage.

Members of numerous professions, including entertainment, counseling, emergency services, technology, farming, and the military, have been demoted or terminated from their jobs because of their beliefs about marriage.

The government also has targeted religious nonprofit organizations. Illinois, Massachusetts, and the District of Columbia stopped contracting with faith-based adoption agencies because they would place children only with married moms and dads.

When the president of Gordon College privately wrote President Barack Obama to request a religious exemption from an effort to force government contractors to accept new views about marriage and sexuality, the school nearly lost its accreditation. Meanwhile, a local school district refused to employ students of Gordon College, and the city of Salem suspended its long-term contract that allowed the college to use the Town Hall.

Legislators in Mississippi responded to this wave of anti-religious discrimination by passing HB 1523. The bill protects individual citizens, public servants, businesses, and religious institutions from being penalized by the government for belief in traditional marriage.

But the ACLU and Lambda Legal sued on behalf of clients who claimed to be harmed by the law. Last June, the 5th Circuit Court of Appeals found that the plaintiffs had no standing because they failed to demonstrate that the law would violate their rights in any way.

The Supreme Court was right to leave the lower court’s decision intact.

These protections should not be controversial. Kennedy recently reiterated his call for tolerance of disagreement on marriage during oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case of a Colorado cake artist whose belief in traditional marriage drew intense ire from state officials.

Admonishing Colorado’s state solicitor general, he stated that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.”

It seems to me that the state in its position here has been neither tolerant, nor respectful of [Jack] Phillips’ religious beliefs.

If federal, state, and local authorities would heed Kennedy’s call for tolerance and respect in Obergefell and Masterpiece, laws like HB 1523 would not be needed.

But as more and more Americans are forced to choose between their job and their conscience, both state legislatures and the Congress should promptly protect citizens from the new wave of government discrimination.

State laws such as HB 1523 and federal legislation such as the First Amendment Defense Act would ensure that the government cannot put anyone out of work for their beliefs about marriage.

Furthermore, what’s at stake here extends far beyond the marriage debate.

If the government can wield its power to silence opinions it disfavors, then everyone is at risk of being punished for holding the “wrong” opinions.

When Thomas Jefferson drafted the Virginia Statute for Religious Freedom that we commemorate today, he observed that Almighty God created the mind free and that all attempts to influence it by temporal punishment or burdens would beget only hypocrisy and meanness. This admonition bears remembering in our modern debate over the redefinition of marriage.

The residents of Mississippi are fortunate that their legislators got it right with HB 1523. Now, Americans in all 50 states need courageous leaders to stand up for their rights, too.

The Daily Signal

Written by The Daily Signal

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