Justice Samuel Alito asked President Barack Obama’s solicitor general Donald Verrilli, Jr. whether constitutional recognition for same-sex marriage would lead to stripping federal tax exemptions from religious colleges that oppose gay marriage, in the same way that federal law strips tax exemptions from colleges that oppose interracial marriage or interracial dating. Rather than immediately answering “no,” Mr. Verrilli said, “It’s certainly going to be an issue.”
And just like that, millions of American Christians could easily and quickly imagine a future where the law held their traditional, orthodox religious beliefs—the beliefs of the Catholic Church and every significant evangelical denomination in America—in the same regard as it held the views of vile racists. But Christians who had been paying attention knew of this risk well before Obergefell. Christians who had been paying attention had seen a trend where legal activists at all levels of government had been aggressively expanding their regulatory and ideological attacks on religious liberty.
During my legal career defending free speech and religious freedom on campus, I saw more than 100 colleges attempt to de-recognize Christian student groups or eject them from campus for reserving their membership or leadership for Christian students. During the Obama administration, Americans watched his Department of Health and Human Services try to force nuns to facilitate access to contraceptives and abortifacients. Catholic adoption agencies that continued to place children with families according to church teachings faced a choice between closing and violating their deeply held beliefs. Christian creative professionals faced ruinous financial penalties for refusing to use their artistic talents to celebrate events they found offensive.
The list could go on, but more disturbing than the individual cases is the deep inversion of America’s constitutional principles that has empowered this legal assault. If governments ultimately prevail in these efforts, the resulting precedents would upend the constitutional order, rendering religious Americans even more vulnerable to future legal attacks, like the threatened loss of tax exemptions for Christian educational institutions.
The Constitution (including the Bill of Rights and the amendments passed in the wake of the Civil War) renders operational and enforceable the founding declaration that Americans “are endowed by their Creator with certain unalienable rights,” which include “life, liberty, and the pursuit of Happiness.” These core American liberties include rights to due process, free speech, assembly and the free exercise of religion. Every other American law—whether a federal statute, state constitutional provision, state law or university regulation—is subordinate to and subject to review under this Bill of Rights.
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