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    09.02.15 Professor Nelson Tebbe Comments on Religious Freedom in Wake of Marriage Equality Decision
    Professor Nelson Tebbe

    The historic U.S. Supreme Court decision to legalize same-sex marriage in all 50 states, has raised questions of the role and limits of religious freedom and the law. Professor Nelson Tebbe, a nationally recognized expert on Constitutional Law, Law and Religion, and Professional Ethics, is being widely sought after to provide commentary on the decision as it related to religion and the constitution.

    The ABA Journal on September 1 published "States deal with religious and gay rights in the wake of same-sex marriage ruling," about how many states are attempting to stave off same-sex marriage by passing their own religious freedom restoration acts. These include language that exempts businesses from providing services to same-sex couples based on the business owner’s religious beliefs. “From a legal perspective, marriage equality does not guarantee most anti-discrimination protections for LGBT citizens on the state or federal level,” Tebbe said.

    The ABA Journal on July 1 published “Michigan district court stops performing marriages in the wake of gay-marriage decision,” about Michigan’s Midland County Court, which stopped performing marriages altogether in the wake of the Obergefell decision. The county judge claims it was more for budgetary and staffing issues, but Professor Tebbe to the ABA Journal that the judge’s decision seems to signal disapproval of marriage equality. “My own view is that a public official may not decline to process same-sex marriages in the wake of the Obergefell decision without violating professional ethics and the Constitution,” he said.

    The Brooklyn Daily Eagle on July 1 published a statement from Professor Tebbe on the decision. Tebbe asks: “Can wedding vendors refuse to serve same-sex couples on religious grounds?” May employers decline spousal benefits to the same-sex spouses of their employees? Is it permissible for religious adoption agencies refuse to place children with gay or lesbian couples, even if they are legally married? Must religious universities provide married student housing to everyone, despite sincere theological objections? These are the questions that will occupy courts, lawmakers, and citizens for some time to come.”

    As co-author of Obergefell and the End of Religious Reasons for Lawmaking,” which appeared in Religion and Politics on June 29, he posits that the recent Supreme Court decision marks "the formal beginning of a new phase in the so-called culture wars,” between conservatives and progressives now that the decision should put an end to lawmaking solely on the basis of religious reasons. The other authors were Micah J. Schwartzman, Edward F. Howrey Professor of Law at the University of Virginia School of Law; and Richard C. Schragger, Perre Bowen Professor and Barron F. Black Research Professor of Law at the University of Virginia School of Law.

    In addition, Professors Tebbe, Schwartzman, and Schragger coauthored a post for the Balkinization blog titled “Hobby Lobby’s Bitter Anniversary,” which revisits the Hobby Lobby Supreme Court decision, and its ramifications for religions and the law, one year later.

    Professor Tebbe teaches courses on constitutional law, religious freedom, legal theory and professional responsibility. His scholarship focuses on the relationship between religious traditions and constitutional law, both in the United States and abroad. His articles have appeared in Georgetown Law Journal, Journal of Religion, Michigan Law Review, University of Pennsylvania Law Review, and, most recently, Virginia Law Review. He is a past chair of the Law and Religion Section of the Association of American Law Schools and he is co-organizer of the Annual Law and Religion Roundtable.