Is the Supreme Court’s ruling on same-sex marriage a threat to religious freedom?
(BEGIN VIDEO CLIP)
PRESIDENT BARACK OBAMA: All of us welcome today’s news should be mindful of that fact. Recognize different viewpoints. Revere our deep commitment to religious freedom.
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BREAM: That was President Obama reacting to the Supreme Court’s ruling declaring same-sex marriage legal in all 50 states. What does it mean now for people of faith? Can same-sex marriage and religious liberty co-exist? Here on that debate, Kelly Shackelford, president and CEO of Liberty Institute, and in New York, Evan Wolfson, president and founder of Freedom to Marry. Gentlemen, welcome to Fox News Sunday.
EVAN WOLFSON, PRES., FREEDOM TO MARRY: Glad to be with you.
KELLY SHACKELFORD, PRES., CEO, LIBERTY INST.: Glad to be with you.
BREAM: I also want to start by reading a part of Justice Kennedy’s opinion. He authored the majority opinion here. He said, it must be emphasized that religions and those who adhere to religious doctrines may continue to activate with utmost sincere conviction that by divine precept, same-sex marriage should not be condoned.
Kelly, he went on to talk about First Amendment protection. You have got the president talking about it. You have got the justice who wrote the opinion guaranteeing that you have protection. So why are you sounding an alarm?
SHACKELFORD: I think that I’m sounding an alarm a little bit because you have people that want to use this decision in an improper way. I think what you said is very important. You read from the majority opinion there. The decision was 5-4 on marriage. The decision was 9-0 on religious freedom and free speech under the First Amendment not being curtailed as a result of this decision, specifically saying that those who advocate on the opposite side of marriage, those who disagree with same-sex marriage, have the full protection of the First Amendment, and you can’t use this decision as some sort of license to discriminate or to persecute those who believe the other way.
BREAM: Evan, it’s clear that a number of dissenting justices, in fact all of them, did have those concerns. I want to read part of what Justice Alito wrote in his dissent. He said, “This decision will be used to vilify Americans who are unwilling to assent to the new orthodox.” He went on to add, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat their views in public, they’ll risk being labeled as bigots, and treated as such by governments, employers and schools.” Evan, did he overstate it?
WOLFSON: Yes, he did. And Mr. Shackelford, surprisingly, I agree with when he’s talked about the fact that the Constitution does protect freedom of speech, including for those who disagree with treating gay people equally and the freedom to marry that the court has respected.
Look, we all believe in religious freedom. We all believe in free speech, or at least we should, and the Constitution certainly protects it. There is no conflict here. People have the absolute right to preach and to think and to say whatever they believe, and at the same time those beliefs can’t be used as the basis for denying other people their equal rights and their equal freedom.
BREAM: And we’re seeing these two interests on a collision course this week on a case out of Oregon. A Christian couple owned a bakery there. They declined to do a same-sex wedding cake for a female couple. It was at a time in Oregon where same-sex marriage was not yet legal, but they have since been ordered this week to pay $135,000 fine, and also they’ve been said they cannot talk about their beliefs in the context of this case. Evan, regardless of how you feel about the underlying merits of the case, do you have any concerns as an American about what essentially turns into a gag order now for this couple?
WOLFSON: Actually, that doesn’t sound right at all. If there’s a gag order, it probably has more to do with the case and their own lawyers and so on. I’m quite sure that no court is telling anybody that they cannot say whatever they want to say. Sometimes, as you know, there are rules in terms — that apply to both sides — with regard to during a trial. But that doesn’t make any sense to me. And I just frankly don’t believe that.
What I do think is important to see here is that this couple, I assume, runs a business. When people run a business and open their door to the public, they must serve the public. That doesn’t mean they can’t say whatever they want to say. It doesn’t mean they can’t believe whatever they want to believe. Those are protected also. But businesses must serve the public. And that’s a principle that we fought for in this country over many, many decades, when some were invoking religious freedom as an excuse to deny people on the basis of their race, on the basis of their religion, on the basis of sex and on the basis now of sexual orientation. Let’s not confuse one thing with the other.
People have an absolute right to believe what they want to believe and to say what they want to say, and churches have an absolute protection to preach and do and not do whatever they choose to do within their houses of worship. But nondiscrimination laws apply to the commercial marketplace and they do protect all of us.
BREAM: Will we see these colliding in the real marketplace, Kelly? That’s where we have this conflict in those two very important rights. I want to play a little bit of an interview with Melissa Klein, this is from the Daily Signal, she is the co-owner of the bakery. Here’s what she said about the case.
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MELISSA KLEIN, OWNER, SWEET CAKES BY MELISSA: It wasn’t them as a couple. We served them in the past. You know? It had to do with their event. We just could not — that particular event could not partake in.
(END VIDEO CLIP)
BREAM: The ruling in this case, by the way, said it’s not about a wedding cake or a marriage. It’s about a business’ refusal to serve someone because of their sexual orientation. Under Oregon law, that is illegal.
SHACKELFORD: This is where Evan and I obviously disagree. This couple — and in fact, if you look at all these attacks on florists, on wedding photographers, they’re never saying we won’t serve you. They’re never saying, for instance, we won’t give you a cheeseburger because you’re gay. And I don’t know any denomination of the over 400 Christian denominations that would say that that’s what you do.
These cases are about forcing people to participate in other people’s weddings. Weddings in particular and marriage have great religious significance to people, and they have certain beliefs. They said, look, you know, we’ll serve, we’ll give cakes, but we can’t be a part of somebody’s wedding. The idea that because they hold those religious beliefs, that they can be now bankrupt, which this young couple and their family, they are bankrupt, $135,000 fine. And I did look at that order. They are specifically ordered not to speak their beliefs on this issue.
You feel like you’re in a different country. That goes against everything we talked about earlier about the First Amendment, about the right of people to disagree with this definition of marriage, of same-sex marriage, and I think Justice Kennedy would say this is wrong. Not only Justice Kennedy, Ted Olson was on this show last week, and he was asked about this. And Ted Olson argued in favor of gay marriage in the Defense of Marriage Act case. He said you should not be forcing bakers. That’s wrong. It violates the rights. It violates the First Amendment.
BREAM: I want to read a portion of the Oregon Constitution that comes into play here. This is Article 1, section 3. It says “no law shall in any case whatever control the free exercise and enjoyment of religious opinions or interfere with the right of conscience.” So Evan, if that doesn’t apply in this case, where does it apply? Is it any good?
WOLFSON: I assume it does apply in this case. And we all believe in the First Amendment. The First Amendment does protect religious freedom. That’s a separate issue from whether a business must serve people in the business. Mr. Shackelford talks about being forced to participate in a wedding. They weren’t being forced to come to the wedding. They weren’t being forced to perform the wedding. They were being obliged to serve a cake in the same way they serve a cake to anybody else who comes in their shop, whether that person be black or white, gay or non-gay, a man or a woman. That’s the obligation that businesses have in the business space.
And again, we can go back and forth. The idea that somehow the couple is being told they can’t say what they want to say, makes no sense to me. I certainly wouldn’t support that either. I don’t believe that’s the facts of the case. But let’s not get sidetracked with —
SHACKELFORD: It is.
WOLFSON: — the detail here, because that just doesn’t make any sense.
The important point here is that we have seen these kinds of arguments again and again and again, in the ’50s and the ’60s and the ’70s when opponents of civil rights failed to block civil rights advances; they then tried to subvert them by carving out exemptions, by carving out special licenses to discriminate, and they often disguised those as claims of religious freedom.
SHACKELFORD: I don’t think–
WOLFSON: The American people have seen — let me just say, the American people have seen again and again that there actually is no conflict. We share the public space. We share the market space. But what we believe and what we say as Americans is absolutely free for all of us. Whether we agree with it or not.
SHACKELFORD: I think it’s the exact opposite. The analogy doesn’t really fit. If you go back and look at what Evan is talking about, you’ll find that the groups that led the charge against getting rid of the ban on interracial marriage or religious groups — the first case were two Catholics. The civil rights movement came out of the church. The idea that we’re now going to silence people that have a different belief would be a very dangerous thing. The church is somewhat the conscience for our country. The women suffrage movement, the child labor laws, the things that come out of allowing people to freely disagree even with the public is what leads to great advances in our country.
So to tell — and certainly you can’t tell the clients, well, you have these beliefs but you can’t live them. We believe in the right of you to believe in prayer, but not to pray. These cases — these clients aren’t the only ones. You have a grandmother who is now being prosecuted because she wouldn’t arrange a floral arrangement in a gay wedding. They’re not only looking at ending her business, but taking her home. We’ve got a man, Jack Phillips, in Denver, who, because he’s under a court order right now to make cakes and participate in a gay wedding. And if he doesn’t, he’ll be in contempt of court and he could be taken to jail because of his beliefs on marriage and not wanting to violate those sincerely held beliefs.
BREAM: Evan, are those potential sentences, is that something you would support?
WOLFSON: Mr. Shackelford is again mixing things up. No one is telling the church what to do. What the law is saying that when you operate a business, you must serve the public without discriminating. And what Mr. Shackelford’s group is doing is running around trying to stoke up stories to make it seem like there’s this tidal wave of problem, when in fact we’ve had the freedom to marry up until Friday in 37 states representing more than 70 percent of the American people, and now of course we have freedom to marry throughout the land. And all they can point to, to kind of conjure up this notion of a problem, are a few business owners who his group has reached out to, to try to get them to say we don’t want to serve this couple.
Again, we saw that in the South during the civil rights movement. We’ve seen that in other parts of the country. The fact of the matter is, people are free to believe what they want to believe, they are free to pray what they want to pray, but they are not free to discriminate against members of a public in a business.
SHACKELFORD: From the privacy of their own homes, in a whisper as Justice Alito said.
BREAM: We’ve got to leave it there. These are actual legal documented cases. People can check them out for themselves and draw their own conclusions. Mr. Shackelford, Mr. Wolfson, thank you both very much for joining us for this important conversation today. We’re going to stay on all of those stories.
When we come back, word of progress in Vienna ahead of Tuesday’s target date for a nuclear deal with Iran. We’re going to bring back the panel to discuss the busy week in foreign policy.
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