Drawing the Battle Lines for Religious Liberty and Same Sex Marriage

REUTERS/Jonathan Ernst
REUTERS/Jonathan Ernst

Kelly Shackelford’s debate with Evan Wolfson on Fox News Sunday highlights the battle lines for religious liberty in America now that the Supreme Court has grossly overstepped its authority by declaring gay marriage a constitutional right. This war will center on whether religious liberty extends to how you earn your living, get an education, and run a business.

For years to come, the fight for many Christians will be on whether their right to the free exercise of religion includes the right to earn a paycheck without violating their conscience, and build a successful career. Televised debates need to focus on the sharp disagreements over whether your religious-belief rights carry over into your secular daily life. The Constitution does not force Christians to choose between being able to put food on the table versus being faithful to their cherished beliefs.

The day after the Supreme Court’s infamous 5-4 decision in Obergefell v. Hodges, Shackelford and I published an op-ed in Investor’s Business Daily, showcasing the discussion on what that court decision will mean for tens of millions of observant Christians.

On July 5, Shackelford—president of the public-interest law firm Liberty Institute—squared off against Wolfson, who since 1983 has been a leader in the effort to make gay marriage a reality through legal action. Shackelford and Wolfson agreed that the Supreme Court’s justices ruled unanimously that churches have free-speech rights to teach their religious beliefs on marriage being between a man and woman.

But what the rest of the interview showcased is that the courts—and the political right and left in this country—are fiercely divided on whether a person’s right to exercise their religion extends beyond the walls of his or her church or house. The Constitution’s First Amendment protects the right of free speech. But just before those words, a separate provision of the First Amendment promises the right to the “free exercise” of religion.

This free-exercise right is separate from the right to free speech, and Justice Kenney’s majority opinion in Obergefell said nothing about this separate fundamental right. Chief Justice John Roberts warned that it was “ominous” that the Court majority did not discuss at all the right to freely exercise religion for those who object to redefining marriage. In fact, all four dissenting justices’ opinions—Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—noted with alarm the implications for what is properly called our nation’s First Freedom.

On Fox, Shackelford explained several of the most egregious examples in the courts right now of Christians suffering for their church’s beliefs on marriage. Oregon bakers Aaron and Melissa Klein recently had a $135,000 fine levied against them, forcing them into bankruptcy. Washington florist Baronelle Stutzman—a grandmother—is being prosecuted by authorities who seek to take her home and life’s savings. Colorado baker Jack Phillips even faces jail time if he violates a court order to bake gay-wedding cakes.

Wolfson tried to muddy the issue by saying “everyone” agrees on religious-liberty rights here, but that is Orwellian double-speak. He showed he clearly thinks that religious-liberty rights do not include allowing their faith to impact how they run their business. In other words, Wolfson concedes free-speech rights, but rejects free-exercise rights. He referred to following your beliefs on marriage as claiming a license to discriminate. Yet the exact opposite is true: Wolfson and his allies are demanding a license to discriminate against faithful Christians.

It would have been revealing if the interview segment had lasted another two minutes. I would have liked to see Wolfson’s response if Shackelford pressed him on whether Stutzman deserves to lose her home, or whether Phillips deserves to go to jail. From what he said on Fox, evidently Wolfson’s answer must be “Yes.”

Someone should push Wolfson to answer those questions so that everyone can know for sure. Then someone should ask Barack Obama the same question. Then someone needs to ask Hillary Clinton; in fact, her Republican opponent should ask her on national television during the presidential debates, and not let the debate move forward until Americans have a definite answer.

This is Ground Zero for the war on religious liberty. The political left—including gay-marriage activists—are saying that your First Amendment rights over gay marriage are limited to what you say in church or in your private home. They say you can have free speech, but not free exercise of religion. They say you can’t live out your faith in your workplace. You can’t run a business with your biblical beliefs on marriage that the church has held for 2,000 years. You have a right to think something in your head, but not to act upon it in your daily life.

This struggle will define the political arena and the courts in 2016. If Christians don’t win this fight for First Amendment rights, then faithful Christians will be persecuted regarding their livelihoods, losing jobs and businesses, and America will become a country many people no longer recognize.

Ken Blackwell is a senior fellow with the American Civil Rights Union and the Family Research Council, and is on the board of directors of the Becket Fund for Religious Liberty.