Daniel Suhr: Obergefell’s bitter aftertaste

MARY REICHARD, HOST: Today is Tuesday, December 5th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Up next, forcing compliance to LGBTQ ideas at the expense of religious liberty.

And in that regard, a recent lawsuit in Vermont is worth watching. Here’s WORLD Opinions commentator Daniel Suhr.

DANIEL SUHR, COMMENTATOR: Less than a decade after Justice Anthony Kennedy promised in Obergefell that people of faith could retain their convictions after the imposition of gay marriage, that promise is turning out to be empty—particularly in one state. The state of Vermont’s school sports league has decided to exclude Mid-Vermont Christian School from its competitions to force the school to include boys on girls’ sports teams. And Vermont’s education agency has denied Mid-Christian’s eligibility for a state scholarship program in order to force the school to hire LGBTQ persons as teachers.

The legal team at the Alliance Defending Freedom is suing Vermont, arguing that the state’s policy violates the First Amendment, which promises faith-based institutions the right to practice their religion. And they have strong legal claims. In the past several years, the Supreme Court has handed down several decisions validating the religious liberty of Christian schools.

In Trinity Lutheran, for instance, the Court said that Missouri could not exclude a Christian school from a program that provided safer playground surfaces. That led to Espinoza, where the Court said that Montana could not discriminate against religious schools in its tax-credit scholarship program simply because they were religious. Next came Carson, where the Court told Maine that it could not discriminate against religious schools if scholarship funds went into a general pot to operate the school.

Mid-Vermont’s case asks the next question in line from these important building blocks. If a school cannot be excluded because of its religious uses of funds, can it be excluded because of its religious beliefs, namely those around human sexuality?

The answer is not obvious as a matter of law. On its face, Vermont’s is a neutral law that applies across the board: All schools must not discriminate based on sexual orientation or gender identity when hiring staff. In a case called Employment Division v. Smith in the early 1990s, the Supreme Court held that the First Amendment’s free exercise clause does not protect someone with a religious belief that goes against that kind of neutral law of general applicability.

It is a decision many conservatives have questioned, if not outright criticized, since its issuance, and many efforts have been undertaken to overturn it. The Supreme Court has pulled back from it by often asking whether a supposedly neutral law targets religious people. That seems like an obvious argument to take here, where the State of Vermont decided to impose this new regulation to force religious schools into compliance or out of the program.

Of course, that is the saddest part of this story—that in its single-minded quest to impose its sexual ideology, Vermont chose to railroad the religious liberty of its schools. It knew some Christian schools would refuse to bend the knee, even if it cost them much-needed students and scholarships. Still, Vermont chose to inflict that pain to express its displeasure with their adherence to long-standing Christian orthodoxy on sex.

That is not the attitude that a good and gracious America has historically taken, where we have celebrated religious tolerance and religious diversity. What a loss. Let us hope that Alliance Defending Freedom emerges victorious and helps undue the consequences of Employment Division v. Smith.

I’m Daniel Suhr.

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