Recognition of Same-Sex Marriage: Implications for Religious Objections

Summary

The U.S. Supreme Court’s landmark decision in Obergefell v. Hodges in June 2015 held that the Fourteenth Amendment of the U.S. Constitution required states to issue marriage licenses to same-sex couples and to recognize same-sex marriages formed in other states. The Court’s decision in Obergefell does not directly address incidental claims related to religious freedom in the context of same-sex marriage. However, the case has generated a number of other questions regarding potential implications of the Court’s decision, particularly with respect to the rights of individuals or entities with religious objections to same-sex marriage. Among the issues raised are the obligation of marriage officiants to perform or facilitate same-sex marriage ceremonies; civil rights protections for same-sex couples and religious objectors; potential protections for religious social service providers in federally funded programs; and the impact on tax-exempt status of religious entities that object to same-sex marriage.

Questions related to the solemnization of same-sex marriages involve whether individuals who serve as marriage officiants, either in religious or civil ceremonies, would be required to solemnize marriages to which they object. Although long-standing Supreme Court jurisprudence indicates that religious officiants would be protected under the First Amendment, the protections available to civil servants whose duties include issuing state marriage licenses or officiating at civil ceremonies are not as straightforward, and may depend on a number of other factors.

Expansion of constitutional protection to same-sex couples also may have implications under civil rights law and certain federally funded social service programs. Under federal and state civil rights provisions, questions have involved whether owners of public accommodations may be required to serve same-sex couples; whether health care providers may be required to provide medical treatment regardless of a patient’s sexual orientation; and whether religious institutions must provide housing to same-sex couples. Generally, courts are finding that a business must provide the same services to same-sex couples as it provides to opposite-sex couples, or that the business must not offer services that it would object to offering to same-sex couples. In the context of social service programs, some religious organizations receive federal funding to provide certain social services (e.g., adoption). However, concerns have been raised regarding whether such organizations could decline to serve same-sex couples based on their religious objections to same-sex marriage.

Finally, the Court’s decision may affect religious entities’ tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. One qualification for Section 501(c)(3) status is that an organization cannot engage in activities that are illegal or violate a fundamental public policy. This is referred to as the “illegality doctrine.” A question that has been raised in light of the Obergefell decision is whether religious entities that act in opposition to same-sex marriage could be in violation of the doctrine. In testimony before Congress in July 2015, the Internal Revenue Service (IRS) Commissioner stated that the IRS would not currently apply the doctrine to religious entities acting in opposition to same-sex marriage, but left open the possibility that the agency could change its position in response to future legal and policy developments. If the doctrine were to apply, one question that might arise is whether a religious entity’s First Amendment rights would be violated if its tax-exempt status were revoked due to actions based on sincerely held religious beliefs. The Supreme Court has held in another context that denial of tax-exempt status of religious schools under the illegality doctrine may be permissible under the First Amendment, so long as the law or policy requiring the denial advances a compelling governmental interest that could not be served by less restrictive means and is based on neutral, secular criteria. Notably, the Court’s holding did not address the doctrine’s application to houses of worship, thus leaving open the possibility that they may be afforded greater protections.