Attorney Kim Colby, director of the Center for Law and Religious Freedom of the Christian Legal Society, discussing religious liberty challenges posed by the Supreme Court’s same sex marriage decision.

<p>Attorney Kim Colby, director of the Center for Law and Religious Freedom of the Christian Legal Society, discussing religious liberty challenges posed by the Supreme Court’s same sex marriage decision.</p>

<p>Free sharing permitted under the Creative Commons <a rel="license" href="http://creativecommons.org/licenses/by-nc-nd/3.0/us/">BY-NC-ND 3.0 (US)</a> license.</p>

Church State Council

Alan Reinach

Same Sex Marriage: Now What?


Ah, sweet land of liberty. Our founding fathers not only pledged, but gave their lives, their fortunes, and their sacred honor to obtain our God-given liberty. Now it's our turn. Liberty can only thrive if it's alive in the hearts of a freedom-loving people. I'm Dan Matthews, and I'm pleased to welcome you to Freedom's Ring.

Here's our host and constitutional lawyer and minister, Alan Reinoch. Well we've all heard a lot about the Supreme Court decision regarding same-sex marriage. And you may have even heard some things about how this would impact religious freedom, but that's the discussion we're going to have today with an expert in the area. I'm welcoming back to Freedom's Ring, Kim Colby, the director of the Christian Legal Society's Center for Law and Religious Liberty. Kim, thanks for being with us for this very important topic.

It's my pleasure, Alan. You know, I recall you've been at this even longer than I have, but you don't ask a woman her age so I'm not going to tell our listeners just how many decades or years you've been doing this. But you're in a position, having been through religious liberty battles now for quite some time, to have an educated view of where the challenges are gonna come. Now that same-sex marriage is recognized throughout the nation, how does this impact those who are dissenters, who are non-conformists, who still believe that marriage properly is between a man and a woman, and that's part of their faith, part of their religious heritage, and not only individuals but institutions, Christian colleges or universities or other types of social service agencies, even churches. Is there a threat to churches who don't change their beliefs?

Where do you as a religious liberty advocate see some of the challenges in the coming years? Well I think you've named several of the places that will see challenges. I mean, we've already seen challenges in the small for-profit businesses where the florist doesn't want to provide flowers for the same-sex ceremony or the photographer does not want to take photos of the ceremony, where basically people involved in the wedding business want to be able to opt out. And so far they've had a really rough time in the state human rights commissions. But most of those cases, all but 1, are still making their way through the state courts.

But the real place that I'm concerned about is, I think churches need to take some practical steps to protect themselves. There's no absolute way to protect an institution entirely from a lawsuit or even mostly, but there are some smart things they can do. The institution I'm most concerned about are the religious schools and colleges. Well, just explain where you see the challenges to religious colleges or high schools and elementary schools. Right.

Well, we saw 2 of them raised during the oral argument in April of this year in the Obergefell case, the same-sex marriage case. And during the oral argument, Chief Justice Roberts asked the United States' attorney, Solicitor General Verrilli, how a decision in favor of same-sex marriage would implicate the religious liberty for colleges that have housing policies that restrict their married housing to couples that are married as a matter of the college's religious beliefs, not as a matter of state law. And the Solicitor General basically tried to sidestep that question. I don't think he did it very well. And so I think that is going to be 1 place where we see lawsuits brought.

The other place, of course, which got a lot of attention was when Justice Alito asked Solicitor General Varelli about tax exempt status being taken away from religious colleges if they quote unquote discriminate on the basis of same sex marriage. And there the Solicitor General was actually more forthright than I thought he would be and he said yes, it could be an issue. So those are 2 of the concerns. So tax exemption is a very kind of alarming issue for many. I think it bears a little closer scrutiny on our part.

First, to remind listeners that I think going back to a 1972 Supreme Court decision, the Supreme Court held that real property tax exemption of churches was not constitutionally mandated, but permissible. A case out of my home state, the great state of New York. So we think you know we take for granted that we have a right to property tax exemption but in fact the court said no it's not a matter of right it's permissible but not required right? That's my recollection of Walsh, yes. And so but if you think about it, are we more at risk in blue states than red states to have States go after the tax exemption of conservative churches?

Yes, I think so. Now, I don't want to be alarmist either and yesterday the IRS Commissioner in response to a question from Senator Lee at a hearing said that at least for the next 2 and a half years nothing would be done about religious colleges tax-exempt status. So that's good news. What was the basis of 2 and a half years? I've asked some people and I don't know I just assume that's his term in office.

I see. But I don't know that I've been asking around but I think to your point yes there's federal tax exemption but there's state and local as well. And I think it was last year that the state of California, 1 of the houses, passed a bill that would have denied tax exempt status in a narrow range of, it was some sort of youth tax to the Boy Scouts. Yeah, we were opposed to that. It had to do with high school intramural sports.

It was kind of a shot across the bow just to raise the whole issue. It was kind of a bizarre bill and it ultimately didn't make it. But no, we know that the issue of tax is on everybody's mind, both left, right and center. So we know we're gonna find challenges and you know it may seem unlikely with a Republican dominated Congress to see tax protections rolled back at the federal level But my chief concern is at the state level where you would have states willing to penalize churches not only religious colleges, but churches themselves What about things like the students at Besides the issue of married student housing, which I think, I mean, a college could just say, okay, well, we'll get out of the business of providing married student housing and sell those units to a private landowner and do something else with them. But what about eligibility for grants?

If the students at these colleges can't get the government-guaranteed loans and get, in California we have Cal Grant, nationally we have the Pell grant, that would be a huge hit to colleges. Right, and there's actually Senator Lee of Utah has introduced a bill called the First Amendment Defense Act. I think he introduced it a couple of weeks ago that would try to protect religious institutions and persons from any sort of retaliatory action by the federal government based on their belief in marriage between a man and a woman. So that's good. What I've been trying to tell schools and colleges just generally and churches is, you know, this is the time to do what we all should have been doing years ago just as good risk management practices, and that is to make sure that we, our institutions have adopted really sound theological statements of belief about marriage, sexuality, gender identity, about how Christians resolve disputes so that we don't go to court, and then also about who makes the decisions within our religious institutions as to how the religious doctrine applies.

And once an institution works out those 3 basic theological statements, then they should weave those statements throughout their employment documents, their student admission documents, their members' covenants, facilities use agreements, and throughout their policies. That's 1 step they should be taking with the help of legal counsel who are familiar with their state and local laws. Sure, that makes good sense. What about other types of religious institutions besides colleges, universities, and other schools? Do you see potential for impact on social service organizations, on health care?

Yes. So we've already seen with the executive order of last summer and the application of marriage at the federal level. Language working its way into some, not many yet, but some federal contracts, of course, and then federal grant language that is basically trying to tell these religious nonprofits to provide good social services to all who need them, that somehow these religious nonprofits have to hold the view that there is no difference between marriage between a man and a woman and marriage between 2 people the same gender. And so far it's really a stretch in applying that to grants, but of course the executive order applied to contracts and so a few faith-based organizations are already starting to grapple with that issue. So it sounds kind of like a loyalty oath where the government says if you don't sign a statement saying that you'll comply with the non-discrimination policies that you can't be eligible for the contract.

Right. Typically, for example, Loma Linda University and Medical Center, which is a large Seventh-day Adventist institution, they've done a lot of business with both the state and the federal government for very innovative health care research and you know they insist in all their contracts that their right to operate as a Christian institution is respected. But I think increasingly they're going to lose those contracts. Well, 1 thing, you know, the line that I think we're hoping to persuade the government to draw is between requiring that Christian groups provide services to all eligible beneficiaries. That, you know, Christian groups want to serve everyone.

So that's a line we could live with, or a requirement I think most christian groups can live with if the government said that all and also you can't quote-unquote discriminate in your hiring then that becomes a different line of course exactly Because most faith-based organizations require that their employees comply with their religious beliefs regarding various kinds of conduct. Well, the whole purpose of a religious organization is to live out the values of the faith in society in Christian service. And so in order to do that, the people who are employed have to be living that faith. Exactly. Well, we've been talking about the implications of the Supreme Court's decision on same-sex marriage with Kim Colby, Executive Director of the Christian Legal Society's Center for Law and Religious Freedom.

This is not an issue that's going to go away. I'm sure we'll have many more such conversations in the future. Kim, thank you so much for being with us on Freedom's Ring today. Thank you, Alan, for all you do for religious liberty. And you as well.

Listeners, Don't forget, freedom is not free. Be informed, get involved, join the North American Religious Liberty Association today, producer of Freedom's Ring, on the web at religiousliberty.info. This has been Freedom's Ring. I'm your host, Alan Rynok. Until next week, let freedom ring.

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Same Sex Marriage: Now What?

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