Same-sex marriage: three especially noteworthy briefs have been filed

Redefining Marriage Would Erode Religious Liberty and Free Speech Rights of Citizens and Churches


by Carl H. Esbeck

Finding a right to same-sex marriage in the Fourteenth Amendment would threaten the religious liberty of citizens and organizations who support marriage and silence or chill the speech of dissenters.

Among the many friends-of-the-court briefs in support of the states in the current same-sex marriage litigation, three especially noteworthy briefs have been filed by religious organizations, public speakers, and scholars concerned about religious liberty and free speech. The ecumenical breadth and numerical strength they represent is impressive. 

1) One expresses the combined views of the National Association of Evangelicals (NAE), the Ethics & Religious Liberty Commission of the Southern Baptist Convention, The Church of Jesus Christ of Latter-day Saints (“Mormons” or LDS), the Missouri Synod of the Lutheran Church, the Christian Legal Society, and several denominations affiliated with Evangelical Protestantism. 

2) A second brief was filed by the United States Conference of Catholic Bishops. Together, these groups represent the religious affiliations of more than 130 million Americans—approximately 40 percent of the country. 

The Protestant/LDS brief (which I worked on) and the Catholic bishops’ brief raise similar themes. The signers of both briefs reject the notion that support for man-woman marriage is founded on animus and that the marriage laws can be struck down on that basis. They also warn that elevating sexual orientation to a protected class or same-sex marriage to a fundamental right would impede religious liberty.

3) A third brief, filed by religious organizations, public speakers, and scholars concerned about free speech, explains the ways in which those who do not agree with same-sex marriage have been actively silenced or chilled in speaking their views. Given the importance of the freedom of speech to political and religious minorities, this is especially disturbing.

• Religious Support for Man-Woman Marriage Is Not Based on Animus ...
• Traditional Marriage Laws Cannot Be Struck Down on the Basis of Animus ...
• Recognizing a Right to Same-Sex Marriage Would Impede Religious Liberty ...
• Constitutionalizing Same-Sex Marriage Would Weaken Free Speech ...

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