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 no 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.
Nathan C. Walker is associate director of the Religious Freedom Center of the Newseum Institute. This article was originally published by Sightings of The Martin Marty Center for the Advanced Study of Religion, University of Chicago Divinity School. To comment, email Editor, Myriam Renaud, at [email protected].