'Religious Freedom' Fight Comes to Congress

Legal experts say clergy can't be forced to perform same-sex marriages, but some religious institutions could lose other benefits if they don't serve gay couples.

Florists and caterers are taking a backseat to churches in the first round of "religious freedom" bills since the Supreme Court legalized same-sex marriage nationwide.

For the past several years, the political debate over religious liberty has focused on private, secular employers—from the for-profit businesses that objected to Obamacare's contraception mandate to bakers, florists, and other wedding vendors who want to refuse to work same-sex weddings.

Most legal experts say those battles will continue, and perhaps intensify, now that the high court has declared a constitutional right for same-sex couples to marry. But the first handful of religious-liberty measures introduced since the Court's ruling have focused instead on churches and clergy members—even though their ability to refuse same-sex couples might be far more secure than private business owners'.

Kansas Gov. Sam Brownback was the first Republican governor out of the gate with a religious-liberty proposal after the high court ruled. He signed an executive order that says the state cannot discriminate against "any individual clergy or religious leader" who refuses to take part in a same-sex wedding due to his or her "sincerely held religious belief or moral conviction."

Brownback's order also shields religious organizations, including those that provide social services.

And in Congress, Rep. Raul Labrador and Sen. Mike Lee are hoping for a vote on their First Amendment Defense Act.

They introduced the measure before the high court's ruling, but the Supreme Court's decision has sparked intensity among conservatives to push for a vote—calls that leadership, so far, hasn't answered. The Republican Study Committee has scheduled a news conference Thursday to press its case, despite House Speaker John Boehner's reluctance to wade into social issues.

Lee and Labrador's bill would prohibit the federal government from denying financial benefits to institutions that object to same-sex marriage—for example, the IRS revoking a church's tax-exempt status.

Even most supporters of same-sex marriage believe that clergy won't have to perform such ceremonies, and churches generally have greater protection from nondiscrimination law than secular institutions.

Justice Anthony Kennedy emphasized in his written opinion allowing same-sex marriage that the First Amendment would still protect religious objections.

"Religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned," he wrote. "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."

Things could get murkier, though, for organizations that are religious, but aren't churches.

"I think it quite unlikely that ministers will be forced to do weddings, or that churches will lose tax exemptions. But they face many other difficult issues," said Douglas Laycock, a law professor at the University of Virginia who specializes in religion and the First Amendment.

"Church social-service agencies could lose government grants and contracts. Religious schools and colleges could lose Pell grants and federal loans, and K-12 schools could lose "¦ money for educational equipment," Laycock said.

During oral arguments over same-sex marriage, Justice Samuel Alito pointed to the case of the conservative Bob Jones University, which lost its tax-exempt status because of its ban on interracial dating. The IRS changed its rules in 1970 to deny tax exemptions to schools that discriminated on the basis of race, and in 1983, the Supreme Court said that was constitutional.

However, by the time Bob Jones lost its tax-exempt status, Congress had passed a law prohibiting discrimination on the basis of race. No such protection exists for sexual orientation. The Court's ruling against Bob Jones came more than 20 years after that law passed, and nearly as long after the Court had struck down state laws banning interracial marriage.

In other words, legal experts have said, institutions that oppose same-sex marriage probably aren't about to lose their tax-exempt status anytime soon.

But that doesn't mean they're out of the woods forever.

"In the Bob Jones case, the Court held that a college was not entitled to tax-­exempt status if it opposed interracial marriage or interracial dating," Alito said during oral arguments on same-sex marriage. "So would the same apply to a university or a college if it opposed same­-sex marriage?"

"It's certainly going to be an issue. I don't deny that," Solicitor General Donald Verrilli replied.