On the domestic front, there are two obvious frontrunners for the religion headlines likely to predominate in 2014. Both involve imminent decisions by the US Supreme Court: same-sex marriage and insurance-covered contraception.
With regard to same-sex marriage, “equal protection” will likely be the catch phrase. A significant number of lower courts are preparing to examine the constitutionality of Defense-of-Marriage-Act (DOMA) laws in several state governments. To the country’s surprise, Utah is 2014’s leader for this trend.
On December 20, 2013, federal district judge, Robert J. Shelby, held that Utah’s DOMA law violates the equal protection guaranteed by the due process clauses in the US Constitution’s fourteenth amendment. By the time Shelby issued his ruling, nine additional state courts, along with the District of Columbia, had issued similar decisions. Utah has since successfully convinced the US Supreme Court to block temporarily Shelby’s ruling until the high court definitively determines whether state governments, not the federal government, have the right to establish a definition of legal marriage.
Meanwhile, reporters have been writing about the surprise absence of Mormon outrage. After Mitt Romney became the Republican nominee for President in the 2013 election, the Church of the Latter Day Saints (LDS) stopped organizing protests and lobbying against marriage equality.
What does this shift say about Utah, where 58% of the state’s population are LDS, a once national force in helping to define legal marriage as a union between one man and one woman? In 2004, 69% of Utah’s Mormons believed that same-sex relationships should not receive legal recognition. By 2012, their opinion had changed: 54% supported civil unions and 8% supported marriage equality.
Just as the LDS Church’s stance has changed, so has the country’s. In 2004, 41% of the general public supported same-sex marriage; in 2009 57% supported civil unions but not marriage equality; by 2013, 58% thought that gay marriages should be legally recognized and that same-sex marriage-partners should benefit from the same rights as married men and women.
If looking back gives us insight into what is ahead, then the major religion story of 2014 may be a non-story. Rather than a vitriolic backlash from conservatives, religious and otherwise, the country may, like Utah, surprise spectators with a relatively subdued outcry. Likely causes: widespread fatigue about this subject and growing support for same-sex marriage. Will 2014 prove to be the year that the two-decades old topic of same-sex marriage becomes a non-issue?
With regard to insurance-covered contraception, “equal access” will likely be the catch phrase. The US Supreme Court is currently considering this question: does the 1993 Religious Freedom Restoration Act (RFRA) exempt Hobby Lobby and Conestoga Wood Specialties, both for-profit corporations, from the federal requirement to provide employees with contraceptive coverage because these corporations’ owners object on religious grounds?
The Supreme Court justices’ ruling will likely hinge on their interpretations of four particular sections of RFRA. First, they will need to determine whether a corporation is legally equivalent to a “person” who has the right to exercise his or her religion. Given that this same court ruled in favor of for-profit corporations seeking free speech rights, it is likely that a majority of the justices will (mistakenly) grant “person” status to corporations.
In this case, the justices will proceed with the second question: are the corporation-owners’ religious views “substantially burdened”? The RFRA says that if a person’s exercise of religion is found to be materially hampered by the general laws that apply to everyone (neutral laws), exemptions must be granted. In the past, Justice Scalia has led the court in ruling that the use of peyote by Native Americans did not exempt teachers from anti-drug laws.
If the religious views of the corporations’ owners are not deemed “substantially burdened,” the justices will affirm the mandate and require the owners to provide contraception coverage. Otherwise, the judges will proceed with the third and fourth interpretations. They will ask whether the federal government’s contraception mandate advances a “compelling government interest” and whether the Affordable Care Act does so with the “least restrictive means” possible. The Obama Administration has to demonstrate that universal access to contraception is a public health concern, and that there is not a less substantially burdensome way of achieving this goal.
The fervor on both sides of the contraception debate suggests that regardless of who wins, the US Supreme Court rulings will likely cause a prolonged engagement in religion and public life. If so, 2014 could be the year that the legal and political agendas for various political camps are set for decades to come.
As expected, marriage and contraception dominated 2014’s domestic religion news headlines. At this time last year, same-sex marriage was legal in fifteen states, plus the District of Columbia. Today, 70 percent of the US population lives in a state where marriage equality prevails because, on Tuesday, Florida became the 36th state to issue licenses to same-sex couples. Six state marriage bans have been overturned but are on hold pending appeal to the US Supreme Court.
The significance of this trend is found in the overwhelming uniformity of the federal justice system. Federal courts have denied same-sex couples the benefits of civil marriage in only two of 60 or so cases. This legal consensus suggests that it will be extremely unlikely that any state Defense of Marriage Act (DOMA), which defines marriage as the union between one man and one woman, will survive the US Constitution’s Equal Protection Clause of the Fourteenth Amendment. This clause was created in 1868 to outlaw slavery and used in 1954 to dismantle racial segregation.
In 2015, the US Supreme Court will undoubtedly combine—for all states—the constitutional right to equal protection with the fundamental right to marriage. Will there be political backlash? In some parts of the country, certainly.
But for a supermajority of voters, same-sex marriage will be a nonissue. This will be true for five reasons.
First, gay rights activists have been extremely successful in taking a relationship-based approach to civil rights, meaning that they have maintained personal relationships with those who once denied them equal protections under the law.
Second, the religions have engaged in self-reform. Religious people who once restricted civil marriage to one-man-one-woman have come to accept, love, and become advocates for gay and lesbian couples in their families and communities. This is the patriotic hallmark of every rights movement: those with rights defending those without.
Third, the once fervent “defenders of marriage” were surprisingly silent when states began issuing licenses to same-sex couples—most notably in Utah. Those who disagree tacitly accepted the outcome and disarmed themselves.
Fourth, the majority has had a change of heart. Surveys show that more than one-third of the voters who once helped legalize marriage discrimination now deem it unreasonable.
Fifth, support for same-sex marriage has increased in every age bracket, not just in the younger generation.
These five trends demonstrate that a relationship-based approach to justice can lead, as it did in the case of same-sex-marriage, to a genuine change in the collective’s conscience.
The vitriol once discharged on the subject of same-sex marriage has moved to a different arena where one group is now battling another: religiously organized corporations versus women.
Can owners of for-profit corporations use religious liberty claims to refuse their employees contraception coverage? Yes, the US Supreme Court ruled in June in the highly debated Hobby Lobby case. Unlike in the same-sex marriage cases, in the Hobby Lobby case, Justice Kennedy joined the conservative wing of the court to find that Hobby Lobby was exempt from the federal contraception mandate in the Affordable Care Act.
This majority held that the federal Religious Freedom Restoration Act (RFRA) protects “persons”—and, therefore, closely held corporations (in which less than five shareholders own the majority of stocks)—from laws that substantially burden their owners’ religious beliefs.
Justice Ginsburg joined with the other three progressives on the court; in her impassioned dissent, she argued that the majority opinion misconstrued Congress’s intent. The RFRA, Ginsburg asserted, did not explicitly state that for-profit corporations could exercise religion, let alone permit owners to use their religious beliefs to claim exemptions from civil right laws that protect women from discrimination in employment.
In an interview with Katie Couric, Justice Ginsburg said, “I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don’t share that belief.”
Couric asked, “All three women justices [along with Justice Stephen Breyer] were in the minority with the Hobby Lobby decision. Do you believe the five male justices truly understood the ramifications of their decision?”
Ginsburg gently responded, “I would have to say, no. But justices continue to think and can change. So, I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.”
How? Ginsburg said, “I think daughters can change the perception of their fathers,” seemingly encouraging the daughters of her male colleagues to share their opinions with their fathers as well as inviting daughters throughout the country to engage in intergenerational dialogue to co-create an equitable society.
Perhaps this relational approach, so important in making marriage equality a reality in 2014, will eliminate the blind spots in the contraception debates of 2015.
Liptak, Adam. "Justices Block Gay Marriage in Utah During Appeal of Case." International New York Times, January 6, 2014. http://www.nytimes.com/2014/01/07/us/justices-block-gay-marriage-in-utah-pending-appeal.html?_r=0&hp=&adxnnl=1&adxnnlx=1389029017-q9oB5Bt/MJaPBG4kD3ezFw.
Luis Lugo, “Religious Landscape Survey.” Pew Research Center, February 2008. Access by viewing the percentage of U.S. adults who are affiliated with Mormon Tradition and cross referenced with religious composition of Utah: http://religions.pewforum.org/maps.
Luis Lugo, “Majority Continues to Support Civil Unions” Pew Research Center, October 9, 2009. http://www.people-press.org/files/legacy-pdf/553.pdf.
Kelly Patterson, “Public Opinion on Gay Marriage in Utah.” Brigham Young University’s Center for the Study of Elections and Democracy, July 9, 2012. http://utahdatapoints.com/2012/07/public-opinion-on-gay-marriage-in-utah.
Jon Cohen, “Gay marriage support hits new high in Post-ABC poll.” Washington Post, March 19, 2013. http://www.washingtonpost.com/blogs/the-fix/wp/2013/03/18/gay-marriage-support-hits-new-high-in-post-abc-poll/.
Tim Townsend, “Conservatives continues to oppose same-sex marriage but by smaller margins.” Pew Research Center, October 11, 2013. http://www.pewresearch.org/fact-tank/2013/10/11/conservatives-continue-to-oppose-same-sex-marriage-but-by-smaller-margins.
Holland, Jesse. "Gov't: Birth control mandate should not be blocked." AP, January 3, 2014. http://bigstory.ap.org/article/govt-birth-control-mandate-should-not-be-blocked.
For information about the marriage case in Utah, see: Kitchen v. Herbert, https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?213cv0217-90.
For information about the contraception mandate before the US Supreme Court, see: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties v. Sebelius.
Walker, Nathan C. “Marriage and Contraception Will Dominate 2014’s Religion Headlines.” Sightings, January 9, 2013. http://divinity.uchicago.edu/sightings/marriage-and-contraception-will-dominate-2014%E2%80%99s-religion-headlines-%E2%80%94-nathan-c-walker.
Cillizza, Chris. “The Supreme Court confirms what we already knew: The fight over gay marriage is over.” Washington Post, October 6, 2014. http://www.washingtonpost.com/blogs/the-fix/wp/2014/10/06/the-supreme-court-confirms-what-we-already-knew-the-fight-over-gay-marriage-is-over/.
Flores, Andrew. “Support for same-sex marriage is increasing faster than ever before.” Washington Post, March 14, 2014. http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/03/14/support-for-same-sex-marriage-is-increasing-faster-than-ever-before/.
Same-Sex Marriage Fast Facts. CNN Library, December 20, 2014. http://www.cnn.com/2013/05/28/us/same-sex-marriage-fast-facts/
Burwell v. Hobby Lobby Stores.The Oyez Project at IIT Chicago-Kent College of Law. December 17, 2014. http://www.oyez.org/cases/2010-2019/2013/2013_13_354
Couric, Katie. "Exclusive: Ruth Bader Ginsburg on Hobby Lobby Dissent." August 16, 2014. http://youtu.be/ha2bthUebac.
NOTE: The IRS defines a “closely held corporation” as a corporation that “has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.” http://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Small-Business,-Self-Employed,-Other-Business/Entities/Entities-5.