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    After Obergefell

    Liberating Christian Witness

    By John Huleatt

    August 14, 2015
    • Brian Dolge

      As I understand it then the author's point is that one may refuse to bake a cake for a gay wedding as long as one also refuses to bake cakes for weddings of divorced people and people who are having premarital sex or consuming pornography or don't plan to have children or when the woman plans to wear her hair short or teach in church. Presumably each couple will submit a notarized statement.

    • Nancy Danielson

      That should read, regardless of our desires/inclinations, including our sexual desires/inclinations, a man remains a man free to choose a woman to be his wife, and a woman remains a woman, free to choose a man to be her husband, as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife, and thus be married to each other. What separates marriage from every other form of Loving relationship, is the ability and desire to exist in relationship as husband and wife. The Supreme Court has the authority to interpret law, not to change the letter of the law, by removing the necessary and proper requirement for a marriage contract, in order to accommodate persons who do not have the ability and desire to exist in relationship as husband and wife, thus invalidating the validity of a valid marriage contract, while promoting marriage fraud and the sin of adultery, simultaneously. Marriage cannot in essence be and not be, existing in relationship as husband and wife, simultaneously. If it were true that in order to be married, it is not necessary to exist in relationship as husband and wife, then every relationship could be defined as marriage if one so desired.

    The legal and political fight to redefine civil marriage is over. In the United States, this moment was signaled in June 2015 by the Supreme Court ­decision Obergefell v. Hodges, requiring states to permit same-sex marriage.(footnote) A similar conclusion is being reached in other countries.

    Such a deeply held belief is a matter of conscience that cannot be shaken by contrary values of culture, politics, or law.

    What does this mean and what is the way forward for believers? To me, as a follower of Jesus and a First Amendment lawyer, this decision can and should mark the dawning of an era of liberation for the church – setting believers free to advance the work of the gospel boldly and without distraction.

    Certainly, we need to consider the cultural, political, and legal implications of Obergefell. But most importantly, we need to give witness to the truth in word and deed. For two thousand years Christians have believed that the only place for sex is in a marriage covenant between one man and one woman for life. Such a deeply held belief is a matter of conscience that cannot be shaken by contrary values of culture, politics, or law.

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    The Case

    The conflict between gay rights advocacy and religious conscience developed long before Obergefell. It has escalated now.(footnote) In fact, one of the few things that all nine Supreme Court justices agreed on is that religious liberty deserves protection. This new reality is clear and should be cause for concern not only for people of faith but for all people committed to freedom.

    The opinions of the divided court have been the subject of plenty of analysis, to which not much can be added. I cannot pass by one particular analogy, however: the comparison in Justice Kennedy’s majority opinion between a ban on gay marriage and the Jim Crow law banning interracial marriage struck down by a unanimous Supreme Court in Loving v. Virginia.(footnote)The analogy to those racially bigoted laws fails because marriage at its core has always been about bringing male and female together, not keeping races apart. It is simply not true that limiting marriage to a heterosexual union has as little basis in reason or nature as denial of rights to people based on the color of their skin. People who respond from emotion without recognizing this false analogy can quickly be misled in their otherwise commendable attempts to address injustice. They too easily conclude that only bigots could once again be responsible for denying a group their civil rights. Unfortunately, though, this is not the case. Justice Clarence Thomas, who after all is in an interracial marriage, found this comparison to be “both offensive and inaccurate” and went on to say that “laws defining marriage as between one man and one woman do not share [the] sordid history” of anti-miscegenation laws.

    The insidiousness of this comparison suggesting bad faith and bigotry on the part of those who sincerely believe in God’s order for marriage shouldn’t be underestimated. Justice Samuel Alito rightly warned that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.…The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

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    A Legal Way Forward

    Despite these concerns there is reason for optimism, because there is a legal solution that respects everyone’s rights. Two important premises allow us to chart a course forward beyond Obergefell. First, marriage as a civil or legal institution is separate from marriage as a religious one. Second, liberty as conceived in the US Constitution is freedom from government interference.

    The distinction between civil and religious marriage has never been clearer. In the Obergefell decision, this distinction was most strongly noted in a dissenting opinion by Justice Thomas, paralleling arguments from an amicus brief filed by Douglas Laycock, a professor at the University of Virginia School of Law.(footnote) Laycock argued for same-sex marriage in civil law, but only on the condition that the Supreme Court take responsibility for the ramifications for religious liberty. While a legislature or a court can change the definition of civil-law marriage, neither can change the definition of religious marriage.

    Therefore, when a civil marriage departs radically from God’s original ideal, believers cannot in good conscience recognize it as “marriage.” For example, a man and a woman cohabitating together for a long time is not marriage, no matter how much love they may feel for each other and no matter how many states would call it such.(footnote) In his amicus brief, Laycock aptly explains the problems that will arise because we have failed to distinguish civil and religious marriage: “[W]hen the inevitable lawsuits come, those charging churches and synagogues with discrimination will also be conflating civil marriage and religious marriage.…And because the two relationships have been so intertwined, it is inadequate to simply tell the religious organization being sued for discrimination that it is being forced to facilitate only a civil act, and not a religious one.”(footnote)

    Thus the religious liberty implications of gay marriage begin not when a same-sex couple is civilly married but when the state pressures religious organizations or believers to recognize or facilitate such a marriage or otherwise sanction homosexual relationships in violation of their religious commitments and conscience. They become acute where the state lends its support to suppress or regulate religious speech or actions by believers under the rubric of anti-discrimination. This is not a baseless fear: it’s already happening in other jurisdictions, for example in the United Kingdom, where individuals have been arrested or fined simply for voicing their belief in traditional marriage.

    This brings us to the second important premise, emphasized in Justice Thomas’s dissent: that liberty is freedom from government interference. The Anabaptist perspective provides a rich understanding of the relationship between believers and the state. Informed by our forerunners’ martyrdom as heretics at the hands of theocratic rulers, both Catholic and Protestant, during the Reformation, Anabaptists have rightly warned that theocracy necessarily co-opts the church. Rejecting theocracy, however, has a necessary corollary: a strong commitment to keeping the state out of believers’ religious affairs, including the modes of life that result from their faith.

    Accordingly, the state exceeds its legitimate authority when it lends its authoritarian power to either side in this debate. Protecting gays from discrimination in nonreligious matters is an appropriate concern for government and believers alike. But if the government requires believers to act in violation of their conscience in the name of so-called anti-discrimination, it is going too far. The United States, more than most other countries, has a long history of successfully accommodating competing rights. For this to continue, the state and proponents of gay marriage need to understand that no compromise for believers is possible where conscience is at stake. Thus free exercise of religion must be protected just as much as other civil rights. Religious dissent does not lose protection merely by being labeled discrimination. If the American public and the executive, legislative, and judicial branches of our government fail to recognize this, many people who are (in Justice Kennedy’s words) “reasonable and sincere” will have no choice but to resort to civil disobedience.

    Society can move beyond Obergefell and avoid escalating conflict if both sides recognize the distinction between civil and religious marriage and acknowledge the proper extent of government authority. Neither side needs to be intimidated or bullied. Once this détente is achieved, moral claims to the truth can be heard without distraction. Jesus teaches his followers to be peacemakers. We must start by being peacemakers ourselves, and encourage those who disagree on this issue to aspire to the same. While I cannot in good conscience endorse gay marriages, I can agree as a legal matter that the proper solution to this problem is to protect the liberty of both sides.

    Competing rights can and must be reconciled through specific exemptions for religious liberty in statutes and regulations as well as through judicial and legislative vigilance about constitutional protections. This is particularly important when conflicts arise between religious teachings and laws prohibiting discrimination on the basis of sexual orientation. More could and should have been done earlier to ensure fair treatment of gay Americans – far too many have been treated viciously by society, including too many Christian churches. But that failure doesn’t justify eroding protections for sincere religious conviction.

    While religious exemptions are necessary, religious dissenters have a corresponding responsibility to charitably and thoughtfully assess what their conscience and faith demands of them, and only invoke religious exemptions up to and not beyond those limits. It would be counterproductive to demand accommodation merely to avoid what some might consider an uncomfortable interaction, when matters of faith or conscience are not at stake. The limits arising from faith and conscience will fall in different places for different believers – what one considers a simple commercial transaction, another may find sinful. When claims invoking religious exemptions are made sincerely and in good faith, however, they should be accepted on their face.

    Although legal coexistence is possible, believers must remain vigilant about their right to live out their faith. Just as the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion…”) rightly protects citizens from state-sponsored religious orthodoxy, we must now guard against a state-sponsored ideology that suppresses free exercise of faith. This ideology might best be called expressive individualism. In his Obergefell opinion, for instance, Justice Kennedy lauds the virtue of “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” These are the ideals of the sexual revolution culture in which individualism and sexual license reign supreme. The majority opinion would enshrine this worldview as a positive right: not only a freedom from government interference, but a right the government must affirmatively establish and protect.

    In addition to vigilance against government intrusion, individual Christians and churches should take advantage of the rights granted them under the Constitution, following the example of the Apostle Paul, who fully exercised his rights as a Roman citizen (Acts 22).(footnote) Indeed, Paul repeatedly used his legal case as a platform for promoting the gospel. We have a responsibility to rigorously defend the right of sincere believers of all faiths anywhere to live out their faith and express it publicly. This solidarity must transcend partisan politics. Christians are not called to self-identify as politically conservative or liberal, but as disciples of Jesus, whose example and values transcend any such political labels.

    Related Article A Colony of Heaven: The Church in Dissent – by Martin Luther King Jr. Read
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    Steadfast Witness

    This is not the first time the law has sanctioned sin. Whenever the state acts contrary to God’s will it is disconcerting, but legislating morality has always had its limits. In contrast, the power of the gospel, while not forced on anyone, is freely available to all.

    We need effective and authentic witnesses to the power of the gospel. A consistent stand for chastity gives credibility. As men and women of God, each of us has to be willing to make ­personal sacrifices, take up our crosses, and resist sexual temptations. This applies to all of us, not just people with same-sex attraction: for Jesus’ followers, sexual sin includes not just homosexual activity but also premarital sex, adultery, polyamorous relationships, use of pornography, and remarriage after divorce. Beyond this, the church must not only confront sin, but witness to forgiveness and restoration and provide pastoral and practical support for single people and couples committed to chastity.(footnote)

    Coexistence and steadfast witness are twin imperatives that complement each other. A church committed to both can truly claim the mantle of a peacemaker and can credibly demand that the government refrain from interfering in matters of faith and conscience. Its Christ-like example will disarm the arguments of those who would intrude on it. Jesus taught us how to demonstrate love, humility, and hospitality to those with whom we disagree while still expressing moral truths and making public claims of faith.

    We must never stop engaging the world, but model in its midst the truth we believe: “Let your light shine before others, so that they may see your good works and give glory to your Father in heaven” (Matt. 5:13–16). Now that the Supreme Court decision is behind us, the church is free to focus on what matters most. We have a chance to live out the gospel generously, wholeheartedly, and without fear.

    The author is general counsel for the Bruderhof. Photograph by Owen Wallace


    1. Obergefell v. Hodges, 576 U.S. ___, 192 L. Ed. 2d 609 (2015).
    2. See, e.g., Obergefell, 192 L. Ed. 2d at 668 (Thomas, J., dissenting) (citing Brief of General Conference of Seventh-Day Adventists and Becket Fund for Religious Liberty as Amici Curiae in Support of Neither Party, Obergefell, 576 U.S. ___ (No. 14–556)).
    3. Loving v. Virginia, 388 U.S. 1 (1967).
    4. Brief of Douglas Laycock, et al. as Amici Curiae in Support of Petitioners, Obergefell, 576 U.S. ___ (No. 14–556).
    5. Ten states still recognize extended cohabitation as valid civil marriages. See Ira Ellman, Paul Kurtz, and Elizabeth Scott, Family Law: Cases, Text, Problems (Matthew Bender, 3rd ed. 1998), 929–996.
    6. Brief of Douglas Laycock, supra note 3, at 24.
    7. This includes not only their rights of free exercise of religion and freedom of speech, but also the too-often neglected rights of assembly and association. See, e.g., John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (New Haven: Yale University Press, 2012).
    8. For a thoughtful discussion, see Corey Widmer, “Traditional Sexuality, Radical Community,” The Gospel Coalition, October 3, 2014.
    Contributed By JohnHuleatt John Huleatt

    John Huleatt has served for the past eighteen years as General Counsel for the Bruderhof, an international Christian community movement of which he is a member.

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