Clash between same-sex couples’ right to marry and religious freedom is up next, UB law professor says

BUFFALO, N.Y. – The main battle over same-sex couples’ right to marry is over, says University at Buffalo associate professor of law Michael Boucai, and that news was a real relief.

But referenced – more than just a couple times – in the Supreme Court’s majority opinion and in the various dissents, is the idea of religious liberty. And now that same-sex marriage is recognized as a fundamental right under the constitution, Boucai said, expect a clash between those two rights.

“The bounds of the right to religious freedom have been expanding dramatically in recent years thanks in part to the Supreme Court, and that is the irony here,” said Boucai, who specializes in law and sexuality. “If the court’s composition stays the same, it’s not clear how it would rule in religious liberty cases dealing with same sex marriage. I wouldn’t be surprised if they ruled 5-4 the other way based on Justice Kennedy’s votes in past cases.”

But for now, Boucai said, this was a huge win for both LGBT people and for marriage.

Justice Kennedy, who wrote the majority opinion in the 5-4 decision, stresses the extent to which same-sex couples want to uphold, rather than undermine, the institution of marriage.

“Opponents say that including same-sex couples disrespects marriage and what Justice Kennedy does here is turn that logic on its head,” Boucai said. “In fact, these couples want in because they so respect marriage and it’s their exclusion that’s demeaning.”

Jonathan Katz, UB associate professor of visual studies, became the first full-time American academic to be tenured in gay and lesbian studies. He founded the Harvey Milk Institute, the world’s largest queer studies institute, and serves as president and chief curator of New York City’s Leslie Lohman Museum of Gay and Lesbian Art.

When Katz was arrested in 1979 at a gay rights protest, he said, he was beat up in jail and no one did anything about it.

“Now, to see the Supreme Court ratify our love, wow, it takes my breath away,” he said. “I am 56 and I knew we would get here, but I confess, I never thought we would get here this fast. I thought I would see it from my death bed.”

What struck Katz the most, he said, is that the conservative justices on the Supreme Court are ahead of the vocal conservative leaders in this country.

“Dinosaurs squawk before they become extinct, and we are in the squawking phase,” Katz said. “This group of straight white men has come to the realization that their authority over this nation is coming to a close and they are angry about it. Though they may wrap themselves in the flag, people are beginning to see that their vision of this country is not actually a constitutional one.”

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