Laws still protect what Obergefell took away

Monday, July 13, 2015
Charlie Butts (

While an atheist group says it will represent homosexual couples denied a marriage license, a law firm claims those clerks have a legal right to do so. 

First Amendment (Bill of Rights)Attorney Jeremy Dys and Liberty Institute are responding after Americans United for Separation of Church and State claimed in a statement that government employees don't have the legal right – even because of religious beliefs – to refuse to issue a marriage license.

According to Dys, however, the claim by Americans United ignores legal precedent and laws on the books, which prevent the government from forcing people to violate their conscience.

"That is still very good law," says the attorney, citing as one example Title VII of the 1964 Civil Rights Act. That chapter of the law prohibits discrimination against employees, including for their religious beliefs while on the job.  

Dys also cites the federal Religious Freedom Restoration Act and state laws that protect religious freedom, which are still in effect despite the recent U.S. Supreme Court ruling on Obergefell v. Hodges.

Justice Anthony Kennedy alluded to religious freedom in his majority opinion, though some observers took issue with his one-paragraph suggestion that religious people can "continue to advocate" that same-sex marriage is wrong.  

Justice John Roberts warned in his own opinion that the 5-4 ruling "creates serious questions about religious liberty."

Justice Samuel Alito, also warning of the ruling, wrote that "those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools."

After Obergefell was announced in June, the legal strength of religious liberty laws are being tested across the United States, where pockets of resistance are pushing against a tide of compliance. 

Dys, Jeremy (WV Family Policy Council)In Kentucky, a federal judge was scheduled to hear a case today after the ACLU sued Rowan County clerk Kim Davis, who is refusing to issue marriage licenses. 

A second Kentucky clerk, Casey Davis, has said he was asked by Gov. Steve Beshear to resign if he refuses to issue a marriage license to same-sex couples. 

He told MSNBC (see video below) that when he swore an oath to the U.S. Constitution, he concluded that oath with "so help me God," and it's God that he answers to. 

"The unique thing for religious individuals," says Dys, "is that they order their lives by their religion. They don't just do it when they go to their church or when they go to their synagogue or what have you."  

People of faith, he further explains, are religious people "at all times," including at work.

"And so as a country we have made special provision for people of faith to be accommodated while they're at work," he says. 


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