More than 20 years ago, The Church of Jesus Christ of the Latter-day Saints worried that, if Hawaii's Supreme Court were to eliminate the state's bar to gay marriages, the state would try to force the church to celebrate those marriages. To protect its interest in religious liberty, the church sought to intervene in the pending gay marriage lawsuit. The trial judge rejected that possibility out of hand, and the Hawaii Supreme Court ruled in January 1996 that, if the state required churches to celebrate marriages contrary to their faith traditions, courts would block any such effort, based upon the Free Exercise Clause. The court explicitly said that the Constitution bars the state from second-guessing a church's liturgical practice based on its reading of Scripture.
The current Supreme Court certainly agrees with the Hawaii Supreme Court on this precise issue. Indeed, Justice Antonin Scalia raised it at oral argument in Obergefell. He asked Mary Bonauto, counsel for the lesbian and gay couples, whether constitutional marriage rights for those couples would impose a duty upon traditionalist faiths to celebrate those marriages. Speaking for her clients and for the many lesbian, gay, bisexual and transgender rights groups on brief in the case, Bonauto unequivocally answered that the Free Exercise Clause would protect those faith traditions. Justices Ginsburg and Sotomayor immediately agreed with Bonauto's point. No justice objected to this consensus.
Indeed, the justices had already decided the general point of law in exactly the manner suggested by Bonauto. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a 2012 case, the court held that the Free Exercise Clause, as well as the Establishment Clause, bar the federal government from applying anti-discrimination laws to church personnel decisions regarding its ministers and other faith officials. The chief justice's opinion for the court relied on the established First Amendment rule that the state cannot regulate any "internal church decision that affects the faith and mission of the church itself." This statement fits a church's marriage celebration policy like a hand in a glove. The court was unanimous.
Indeed, a concurring opinion by Justice Alito, joined by Justice Kagan, was even more specific in its articulation of the Constitution's protective cover. "The First Amendment," they added, "protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith." In my view, this is a classic statement of what is implicated in the Religion Clauses of the First Amendment.
The court's decision in Obergefell itself is icing on a cake already well-frosted. While rejecting faith-based arguments supporting the traditional definition of marriage as one man, one woman, Justice Kennedy's opinion for the court went out of its way to agree with Bonauto's, Ginsburg's, and Sotomayor's understanding of the Religion Clauses: "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."
Do the Religion Clauses protect churches against more indirect government pressure, such as denial of tax exemptions? I believe it would violate the Religion Clauses if the IRS said that the LDS Church (or the Roman Catholic Church or the Southern Baptist Convention) must lose its federal "charitable institutions" exemption because it will not celebrate same-sex marriages. Recall the Supreme Court's unanimous reasoning in Hosanna-Tabor, that the Religion Clauses protect any "internal church decision that affects the faith and mission of the church itself." For this reason, synagogues will not lose their exemption because their rabbis will not celebrate marriages between Jews and Gentiles. Indeed, for this reason the IRS would not even act against a church that declined to perform marriages between persons of different races.
In short, churches and synagogues declining to celebrate same-sex marriages do not need to worry about government retaliation or coercion for that traditional, faith-based practice.
William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at the Yale Law School.