Fighting Back: Free Speech Brief Filed on Behalf of Religious Leaders in SCOTUS Marriage Case


As the country has been immersed in a divisive battle over competing rights in recent weeks, many Americans, especially those who have sincere religious objections to same sex marriage, fear that the First Amendment is disappearing before our eyes and that religious liberty is becoming an antiquated notion. But one group saw the trajectory of this tidal wave of social change and they’ve been working behind the scenes to defend the rights of people of faith.


On Thursday, the Liberty Institute filed an amicus brief in Obergefell v. Hodges, a case before the U.S. Supreme Court that could significantly impact the future of marriage laws in the United States.

The brief, filed on behalf of a group of prominent religious organizations, public speakers, and scholars, asks the justices to affirm the Sixth Circuit decision upholding marriage laws in Kentucky, Michigan, Ohio, and Tennessee. Perhaps more significantly, especially considering the events of the past week related to Indiana’s RFRA, the brief asks the court to “expressly affirm the First Amendment free speech rights of Christian ministers, teachers, and leaders who are compelled by faith and conscience to preach and speak aloud their millennia-old and sincerely held religious view that marriage is the sacred union of one man and one woman,” the Liberty Institute said in a press release on Thursday.

The impressive list of heavy-hitting signatories of the brief include: National Religious Broadcasters, the Billy Graham Evangelistic Association, Samaritan’s Purse, In Touch Ministries, Pathway to Victory, The Chuck Colson Center for Christian Worldview, Dallas Theological Seminary, The Southern Baptist Theological Seminary, Southeastern Baptist Theological Seminary, Dr. Daniel L. Akin, Dr. Mark L. Bailey, Dr. Francis J. Beckwith, Dr. Robert A.J. Gagnon, Dr. Robert Jeffress, Dr. Byron R. Johnson, Eric Metaxas, Dr. Albert Mohler, Jr., Dr. Charles F. Stanley, John Stonestreet and Dr. Owen Strachan.


In Obergefell v. Hodges, the Sixth Circuit reversed a lower court decision that found in favor of sixteen gay and lesbian couples who said their rights had been violated because the states in question did not allow same sex marriage. The majority opinion, penned by Judge Jeffrey Sutton, is worth reading in its entirety. Sutton carefully explained the historical reasons that our government has sanctioned complementary marriage and railed against those who believe that decisions of such import should be left to a small panel of judges.

“Of all the ways to resolve this question,” Sutton wrote, “one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea.” He added,

Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.

Sutton also made a point of explaining that there are “real people” on both sides of the issue. “It is no less unfair to paint the proponents of the measures as a monolithic group of hate-mongers than it is to paint the opponents as a monolithic group trying to undo American families. ‘Tolerance,’ like respect and dignity, is best traveled on a ‘two-way street,'” Sutton wrote.


The friend-of-the-court brief filed by Liberty Institute echoes Sutton’s sentiment. Also worth reading in its entirety, the brief describes the history of Christian persecution and the faithfulness of the Church during periods when Christians have been marginalized minorities in society. In many ways, it reads like a treatise on the last stand for religious liberty in America. The brief cites a variety of sources ranging from the Bible and John Milton to stories of individuals who have been deprived of their religious liberty to dozens of relevant court case related to free speech and religious liberty.

“Unfortunately, in their zeal to advance and affirm same-sex marriage, many state actors have ignored or violated the very free speech principles that facilitated free and open dialogue on this once-settled question,” the brief begins. It warns that a decisions from the Court imposing same-sex marriage nationwide would exacerbate the problem, resulting in increased free speech violations. The respondents call on the Court to reaffirm “that the Free Speech Clause of the First Amendment protects religious dissenters who disagree with state recognized same-sex marriage and to reaffirm the importance of free debate and free inquiry in this democratic Republic.”

If anything should be settled law in this great nation, the right to free debate and free inquiry should be at the top of the list; nevertheless, it seems that almost daily we see another Christian who’s been dragged out into the public square, shamed and punished for the “crime” of merely expressing his disfavored opinion on the subject of sexual ethics.


The brief explains that Christians have spoken and preached on controversial issues in ways that offended powerful forces in society for over 20 centuries and that’s not about to change with the legalization of gay marriage. They say:

Christian ministers, teachers, and leaders must continue to preach and speak aloud their millennia-old and sincerely held religious view that marriage is the sacred “one flesh” union of one man and one woman. If their sermons and words clash with the views of politically powerful groups or even Government orthodoxy on same-sex marriage, they will have no choice but to seek refuge in the First Amendment generally, and the Free Speech Clause specifically.

They argue that, “The freedom to speak according to religious conscience is essential to the dignity of each person and to the stability of our self-governing Republic.” The brief liberally quotes Justice Anthony Kennedy (thought to be the swing vote in the case) who agreed with the respondents’ position in his previous opinions and cleverly sprinkles in the language of the Left — words like coexist, dignity, and marginalize.

They also claim that the Free Speech Clause is most needed when the views of religious dissenters are “controversial and inconvenient.” They fear the republic will be harmed if dissenters are silenced and afraid to speak.

The brief then goes on to give examples of high-profile religious dissenters who have been actively silenced by government actors — college students, members of the military, an Atlanta fire chief, the Georgia director of public health, the five pastors whose sermons were subpoenaed by the city of Houston. The respondents say the rights of many others have been violated through memoranda, manuals, and training materials that federal agencies have used to impose speech codes on their employees, “silencing or at least chilling religious dissenters,” which they say harms the marketplace of ideas.


“These core First Amendment principles cannot peacefully coexist alongside Government speech codes designed to enforce a superficial and false conformity of belief,” the brief asserts. “Instead, the Free Speech Clause protects a noisy, crowded, and vibrant marketplace of ideas, populated with both supporters and opponents of same-sex marriage.”

The respondents say that if the Court decides to impose same-sex marriage on the states, it will “tilt the playing field” even more decisively against persons of faith, many of whom will continue to maintain traditional beliefs about marriage:

Politically powerful advocates of same-sex marriage would likely use this Court’s decision as a weapon to marginalize persons of faith who will continue to adhere to their millennia-old definition of marriage as the sacred union of one man and one woman. That in turn would lead to countless additional violations of the Free Speech Clause.

After seeing the human wrath that was poured out upon the state of Indiana this past week and the resulting carnage, including the disturbing attack on the owners Memories Pizza, who were simply expressing their religious views, this brief may prove to be a prophetic document — one we’ll refer to when our children ask us about the moment when our generation gave up on the First Amendment and decided that erotic liberty was more important than religious liberty.

Let’s hope and pray that the Supreme Court heeds the warnings of these faithful Christian leaders and that somehow, the tide can be turned back on this tsunami of intolerance heading toward people of faith.



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