Brooklyn Law School professor addresses religious freedom in wake of recent marriage equality decision
In Obergefell v. Hodges, marriage equality became the law everywhere in the United States. That decision had long been anticipated. Many people also expected that Justice Kennedy would write the opinion, as he did, and that he would rely on a blend of liberty and equality considerations. So the opinion was viewed by many as welcome but unsurprising.
After Obergefell, focus has intensified on civil rights protections for LGBT people and on religious freedom exemptions from those protections. Such questions are not new, and they were not changed much by the decision on Friday. But now they will capture greater attention, with the fight for marriage equality in the past.
Can wedding vendors refuse to serve same-sex couples on religious grounds? May employers decline spousal benefits to the same-sex spouses of their employees? Is it permissible for religious adoption agencies refuse to place children with gay or lesbian couples, even if they are legally married? Must religious universities provide married student housing to everyone, despite sincere theological objections? These are the questions that will occupy courts, lawmakers, and citizens for some time to come.
Neither the federal government nor the majority of states provide comprehensive civil rights protection for LGBT people at the moment. That means that private actors may freely discriminate against gay couples in those jurisdictions, regardless of Obergefell. They may do so in various areas, such as employment, housing, and public accommodations.
And in the jurisdictions that do provide such protection, religious groups have argued strenuously for exemptions from civil rights laws, with some success. Controversy over such tensions between civil rights and religious freedom predates Obergefell and it will continue for the foreseeable future.
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Professor Nelson Tebbe teaches courses on constitutional law, religious freedom, legal theory and professional responsibility. His scholarship focuses on the relationship between religious traditions and constitutional law, both in the United States and abroad. His articles have appeared in Georgetown Law Journal, Journal of Religion, Michigan Law Review, University of Pennsylvania Law Review, and, most recently, Virginia Law Review. He is a past chair of the Law and Religion Section of the Association of American Law Schools and he is co-organizer of the Annual Law and Religion Roundtable.