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08/19/2015 07:37 am ET Updated Dec 29, 2016

Conservative Christians Are Still Fighting Gay Marriage, But It's An Uphill Battle Against The Courts

A recent string of losses doesn't bode well for the religious campaign.
Kim Davis, the Rowan County Clerk of Courts, listens to Robbie Blankenship and Jesse Cruz as they speak with her about gettin
Ty Wright via Getty Images
Kim Davis, the Rowan County Clerk of Courts, listens to Robbie Blankenship and Jesse Cruz as they speak with her about getting a marriage license at the County Clerk's Office on September 2, 2015 in Morehead, Kentucky.

For more than 20 years, conservative Christians have been building the case that laws protecting gay people and legalizing same-sex marriage place an unconstitutional burden on the rights of religious people who believe homosexuality is a sin. Over the last decade, as same-sex marriage first crept, then swept, across the nation, the issue has become more pointed: Must Christian wedding vendors, photographers, bakers, florists and county clerks offer their services to same-sex couples in spite of their religious objections?

So far, the courts appear unconflicted on this issue. Last week, conservative Christians suffered two more defeats in a nearly unbroken string of legal losses over the last decade.

First came the ruling of Judge David L. Bunning of the U.S. District Court for Eastern Kentucky, who ordered Rowan County Clerk Kim Davis to issue state marriage licenses to all qualified couples who seek them. Davis is “certainly free to disagree with the Court’s decision, as many Americans likely do,” Bunning wrote, referring to the Supreme Court's decision legalizing gay marriage. “But that does not excuse her from complying with it.”

Then, in Colorado, the Court of Appeals weighed in on a case that has been brewing since 2012, when David Mullins, Charlie Craig and Craig’s mother visited a bakery near their home and tried to buy a cake for a reception celebrating the couple’s upcoming marriage in Massachusetts. (At the time, Colorado did not recognize same-sex marriages.) Jack Phillips, the evangelical owner of the Masterpiece Cakeshop — who also won’t bake Halloween cookies or erotic pastries — told the couple he does not create wedding cakes for same-sex weddings because of his religious beliefs.

Phillips' legal team, the Alliance Defending Freedom, a Christian advocacy group based in Arizona, argued that Phillips' decision to turn down the couple was protected by the First Amendment. But the Colorado Court of Appeals disagreed. The bakery, like Kim Davis, “remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage,” the court explained in its ruling last Thursday. However, if Phillips wishes to run the bakery as a public business, Colorado’s anti-discrimination law “prohibits it from picking and choosing customers based on their sexual orientation.”

Both cases will likely be appealed to higher courts, but religious liberty experts see no indication that they will fare better there. These cases bring up a myriad of complex legal issues: Is issuing a marriage license, or declining to, protected speech? Is issuing a license a substantial burden on a person’s freedom of religion? Is baking a cake a form of artistic expression that is protected by free-speech rights? But so far, all of the arguments in favor of a religious individual’s right to refuse service to same-sex couples seeking to wed have failed in the courts.

“What the courts are saying is that we have a new national norm that same-sex couples have an equal right to marry, and that trumps religious liberty rights in these contexts. Whether you’re in a business or a public official, you don’t get to pick and choose which laws you comply with,” said Katherine Franke, a professor at Columbia Law School who focuses on religious liberty. “What we risk is that individuals become a law unto themselves.” 

The religious advocacy groups arguing in favor of Masterpiece Cakeshop and Kim Davis see the risk in entirely different terms. “I want people like you and everybody else to just be able to live their lives in a way that's consistent with their beliefs,” said Jeremy Tedesco, senior legal counsel with Alliance Defending Freedom.

Tedesco said that neither he nor his clients have anything against gay people, and that Phillips is happy to sell gay couples baked goods so long as the goods were not used in a wedding celebration. He also said that he supported the Denver baker who refused to bake a cake with “God hates gays” written on it. (The Colorado Civil Rights Division ruled that the bakery did not discriminate against William Jack, the Christian who requested the anti-gay cake.) “That’s the consequence of a free society,” he said. “You have to be able to live with those whose views you don’t like.”

But his employer’s history of anti-gay advocacy tests Tedesco’s claim that this latest case is simply about protecting the First Amendment. The Alliance Defending Freedom, formerly called the Alliance Defense Fund, has pioneered the argument that gay rights are a direct threat to religious liberty since as far back as 1994, when ADF solicited funds on Christian radio with an ad claiming that "Hiring homosexuals in Christian schools, churches, and even as Sunday School teachers may soon become the law of the land. ... Don't let Christianity become a crime." In 2003, ADF president Alan Sears co-wrote a definitive text on the subject, The Homosexual Agenda: Exposing The Principle Threat To Religious Freedom Today, in which he argues that homosexuality and pedophilia are “intrinsically linked” and compares the gay “propaganda” movement to what "Hitler did so masterfully in Nazi Germany, to get the American public on their side.”

Despite last week’s losses, Todesco said he was optimistic that the courts would soon begin ruling in his favor. He pointed to a ruling in Kentucky this spring that determined that a Christian T-shirt company did not have to print shirts advertising a 2012 pride festival -- an outlier among the recent rulings. “That’s the right outcome,” he said. “For whatever reason right now the courts are not appreciating the arguments that we’ve been putting forth.”

He didn't speculate as to what the reason might be, but he did say that he expected more lawsuits to be filed concerning Christian clerks and business owners and the same-sex couples they turn away. “We just want to live and let live,” he said. “Their attitude is, this town’s not big enough for the both of us.”

Of course, couples turned away from wedding venues and county clerks' offices often say the same thing — the difference is that these couples sometimes have to actually leave their hometowns in order to wed. David Moore and his fiance David Ermold have lived in Rowan County, Kentucky, for 10 years. Last month, in a widely viewed video, County Clerk Kim Davis told them they can “go to any other county and get your marriage license, we’re just not doing it at this time.” After last week’s court ruling, they tried for a marriage license and were turned down again. This week, the judge issued a temporary stay on the ruling while the appeals process plays out.

“Every time they tell us to leave, it feels like they’re telling us, ‘Don’t live here. Just leave. Your kind are not welcome here,’” Moore told the Huffington Post.

He and Ermold have begun to talk about how long they'll wait before heading over to a neighboring county to get a license. After being turned away for a second time, Moore said that it's become clear to him that "the other side will go as far as they can go with this. Our plan is to fight this as far as we can go, too. But at the same time, we have lives, we have jobs, and we want to get on with our lives."

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