First Amendment not overruled by Supreme Court decision, attorney says

The June 26 U.S. Supreme Court decision declaring same-sex marriage a Constitutional right has left many pastors and church members wondering if their opposition now puts them on shaky legal ground. Attempts by Texas state officials to contextualize the ruling in light of the state’s own ban on same-sex marriage and LGBT activists’ response only confused the issue for people who want to know where they stand in the eyes of the new law.

Confusion and concern regarding the legal implications of the Supreme Court ruling has kept Liberty Institute attorney Jeff Mateer busy fielding calls from Texas pastors. He held at least four conference calls within 96 hours of the decision being handed down and talked with the TEXAN on June 30.

“The First Amendment was not overruled last Friday,” Mateer assures concerned pastors.

While churches, faith-based institutions and ministries, and individual Christians need to be on guard for inevitable legal action, the church should not retreat, he says. Recent legal precedent gives him hope that those with deeply held religious convictions will find relief in court from lawsuits that are bound to come “sooner rather than later.”

In his majority opinion, Supreme Court Justice Anthony Kennedy wrote, “Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

The fact that Kennedy gave at least a nod to the First Amendment implied to Mateer that all was not lost in the struggle to maintain religious liberties.

As of Friday, the Texas’ same-sex marriage ban was still in force, pending a ruling by the U.S. Court of Appeals Fifth Circuit. County clerks lacked the proper documents to issue same-sex marriage licenses. And quick responses to the ruling by Gov. Greg Abbott, Attorney General Ken Paxton, and Lt. Governor Dan Patrick and then counter responses by LGBT advocates left many confused.

Mateer said the situation in Texas was complicated by the media and LGBT activists who misconstrued information in the frenzied hours following the ruling.

Because of the First Amendment and the federal and Texas Religious Freedom and Restoration Acts (RFRA), those opposed to same-sex marriage have legal standing. Within hours of the ruling, Paxton, in response to a question posed by Patrick about religious accommodations for county clerks, said government officials could refuse to issue marriage licenses or to perform weddings. But the AG could not guarantee that doing so could leave county clerks and judges open to lawsuits for refusing those services.

Activists decried Paxton’s statement, demanding all Texas county clerks begin issuing marriage licenses on demand.

But Mateer said religious accommodation laws protect most state and county employees from having to perform job duties that violate their deeply held religious convictions. But, he added, “Religious liberty is a balancing act.”

An employee, such as a county clerk, must demonstrate the sincerity of the religious conviction just as the employer must prove there is no other means of accomplishing a task without the employee. In a large county office with several clerks, the refusal of one clerk to issue a marriage license to a same-sex couple could easily be remedied by the work of another clerk. But small county offices with few staff could test the religious accommodation rules.

In the end, Mateer said, no one should be punished for abiding by their religious beliefs.

Rep. Scott Sanford, R-McKinney, is concerned the Texas RFRA statute is not strong enough to withstand lawsuits filed against churches, business owners and individuals who maintain the biblical and historical definition of marriage. Sanford, executive pastor at Cottonwood Creek Baptist Church in Allen, supported legislation during the 84th Texas legislative session that would have shored up the Texas RFRA and the First Amendment against very specific legal attacks against, however all but one such bill failed.

The Pastor Protection Bill, passed unanimously, ensures pastors and their churches cannot be forced to accommodate an event that violates their religious convictions. But Sanford is among a host of pastors, lawmakers and citizens concerned that the legal battles will come not only to churches but also to faith-based ministries and schools. Sanford was frustrated the legislature refused to acknowledge the potential legal battles to come between people of faith and those who demand affirmation of their sexual orientation.

“I believe that they’re at risk and they are in eminent danger of being forced to violate their faith,” he said.

In a June 26 letter to all state agency heads, Abbott wrote, “The government must never pressure a person to abandon or violate his or her sincerely held religious beliefs regarding a topic such as marriage. That sort of religious coercion will never be a ‘compelling governmental interest,’ and it will never be ‘the least restrictive means of furthering that interest.’”

Although he appreciates the governor’s statement, Sanford believes legislation is needed to directly address the religious liberty challenges Texans will face in the coming months. Sanford will ask the governor to call a special session to address the legal ramifications of the Supreme Court ruling.

Rep. David Simpson, R-Longview, has already made that request, and more will be adding their name to the list, Sanford said.

The state and federal RFRA laws are coming under increased scrutiny, with some claiming the laws give religious people “special rights.” On the same day the Supreme Court handed down their ruling on same-sex marriage, the American Civil Liberties Union (ACLU) announced it would no longer support RFRA laws, claiming they have been used to discriminate against people based on their gender, sexual orientation and gender identity.

Even the dissenting Supreme Court justices warned of impending religious liberty encroachments. In his dissent, Justice John Roberts wrote, “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion.  Ominously, that is not a word the majority uses.”

Certain lawsuits over religious accommodations would reach the Supreme Court, Roberts concluded, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

But, Sanford and Mateer said, the mission of the church has not changed although the culture has. Mateer gives the same message to every pastor who has called him since June 26: “The First Amendment was not overruled last week. You, as a pastor, need not retreat.