Whether law or religion wins depends on the issue, the time, and the court. But religion and law  have important distinctions.

Whether law or religion wins depends on the issue, the time, and the court. But religion and law have important distinctions.

In Obergfell v. Hodges, the United States Supreme Court said we have a Constitutional right to marry whomever we want, regardless of their gender. (Marriage is still one at a time, human, and no close relatives though.)

Many people don’t agree with this. They feel it violates their religious belief that homosexuality is a sin. So they are very uncomfortable that courts say gay marriage is legal and, even worse, Constitutional. They have a Constitutional right to freedom of religion, and now there is a Constitutional right that violates their religion.

What happens when one Constitutional right comes up against another? Is there a Constitutional trump card? More importantly, who gets their way?

There is no clear answer. It depends on who is acting and what other laws are involved.

First, marriage is both religious and legal. The government is only involved in the legal aspects that include licensing (the original data collection device), taxes, rights to property and to act on each other’s behalf, and what happens when one partner dies. Then there are all the rules and processes to untangle a marriage when it ends, especially when children are involved. So government has a strong interest in regulating the legal aspects of marriage because if it did not, all hell would break loose. If you don’t think so, go visit a probate or family court proceeding, any one will do.

Government generally stays out of the spiritual and emotional aspects of marriage. This is required by the First Amendment of the United States Constitution, which says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Establishment clause prohibits the government from “establishing” a religion. There is no clear definition of what is the government establishing a religion. Originally, it meant that the government could not declare an official religion and could not financially support religions. But actions short of that can also violate the Establishment Clause, such as having religious symbols on government property, or requiring a certain prayer as part of government business or in schools. Even those cases go both ways, and turn on the specific facts involved and the court that decided it.

Generally, the courts will apply the “Lemon Test,” named for the Supreme Court case, Lemon v. Kurtzman (1971). Under the “Lemon” test, government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance neither promotes nor inhibits religion, and (3) there is no excessive entanglement between church and state. For example, in Board of Education v. Allen (1968), the Court said it was okay for public schools to loan text books to students who attend religious schools because there was no monetary contribution, and the support was to the students instead of the religious school. It’s pretty safe to say that the reverse – a church loaning religious texts for use in public schools — would not be okay.

It’s also difficult to pin down because public and legal perspectives change over time about where the separation of religion and law should exist. For a long time, “In God We Trust” was not on the US money, and the Pledge of Allegiance said nothing about God.

The other side of the Establishment Clause is the Free Exercise Clause, which protects people’s freedom to practice their religion as long as the practice does not run afoul of “public morals” or a “compelling” governmental interest. This is tricky territory too since “public morals” are a moving target. It is pretty clear that a religion that sanctions murder as punishment for sin would not be allowed even under the Free Exercise Clause because in our culture murder is wrong. This, of course, gets difficult when the government is killing people as part of law enforcement or as punishment with the death penalty. It gets even harder to sort out when some people believe that terminating a pregnancy is murder.

A less controversial example is Prince v. Massachusetts (1944), where the Supreme Court held a state could require vaccination of children attending public school even if the vaccines violated the parents’ religions. This is because public health and safety were “compelling” governmental interests that outweighed the individual right to practice a specific religious belief. (California just passed a similar law this year.)

So marriage is one of those places where law and religion cross, and both have strong interests. The government’s interest is protecting people’s fundamental and Constitutional rights to have loving relationships and to apply the law equally to everyone, no matter who they love. Religion’s interest is in not violating God’s will about that nature and meaning of marriage. When different religions don’t agree, and they don’t, having the government adopt one view looks a lot like establishing a religion.

Both legal and religious interests are important and must be respected legally and socially.

Yet it is also important to respect the difference between law and religion.

One can generally practice a religion without requiring everyone to hold and follow the same religious beliefs. However, laws are social constructs that require everyone to follow the same rules. And when everyone is required to follow a law, it must be as narrow as possible to  address the specific problem the government is trying to solve. It should also benefit of the public as a whole, although some individuals may not agree or benefit.

So as we debate the impact of gay marriage at work and in our lives, it’s good to remember that our religious freedoms are dependent on the exact same laws and Constitutional principles – the freedom to be ourselves, and to hold our personal beliefs and act on them as long as they do not cause significant harm to others.

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feature image on HRExaminer.com v6.25 for July 3, 2015 featuring Firing Line from Bill Kutik
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