The uncharted legal territory of same-sex marriage

Law professors and historians are weighing in on how to balance the newly declared legal right of same-sex couples to marry with the right to religious liberty.

Carl Esbeck, law professor at the University of Missouri, says state and local governments will feel the immediate impact. The Supreme Court’s reasoning in the decision is rooted in the 14th Amendment’s “equal protection” language, which only affects the public sector.

“The immediate impact on the private sector, including churches and religious social service providers, healthcare clinics, crisis pregnancy centers, and adoption care facilities that are operated by religious groups is none whatsoever. Rather, it’s going to take state or local governments then to pass laws or regulations that in turn begin to impact the private sector,” Esbeck said. Christians need to cooperate to see that new laws protect religious liberty. And, he said, they need to advocate and teach why same-sex marriage is wrong for children and our culture.

“Christians are normally in cultures in which they are aliens. Americans need to get used to that,” Esbeck said. “A hostile culture for the church is normal. We’ve been living in an exception.”

Robin Fretwell Wilson, law professor at the University of Illinois, says legislatures must make sure religious rights aren’t eroded while advancing marriage rights. There is a way to handle conscientious religious objectors in the workplace that respects both gay couples and religious believers. Wilson sees promise in a law she helped craft for Utah that recently passed.

“[Utah] said, we’ll extend gay rights and we’ll have what I call ‘step off.’ You don’t get in the way of someone else’s marriage, but you don’t have to facilitate it,” Wilson said.

James Hitchcock is professor emeritus of history at Saint Louis University. He’s written extensively on the Supreme Court and religious liberty.

“It’s starting to happen,” Hitchcock said. “I would make the distinction that goes back to George Orwell, maybe. Soft totalitarianism. In other words, we’re not going to see troops of soldiers marching down the streets and dragging people out of their houses and dragging them off to prison. You’re just going to be hemmed in on all sides by governmental regulations.”

Listen to Mary Reichard’s conversations with law professors about same-sex marriage on The World and Everything in It.