Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Unfortunately, language such as this in an opinion is known as dicta. Dicta, from the Latin dictum (“remark”), is the part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar. It is extraneous material which is merely informative or explanatory and which is not required to reach the decision. While it may be cited in later legal argument, it does not constitute precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. Opposing counsel’s appropriate argument is: "Your Honor, that is merely dicta and is not binding on the Court or the case at bar."
In other words, it is worth less than the paper on which it is written.
Two weeks ago, with a decision in Obergefell v. Hodges on the way, Sen. Mike Lee of Utah introduced the First Amendment Defense Act, which ensures that religious institutions won’t lose their tax exemptions if they don’t support same-sex marriage. Liberals tend to think Sen. Lee’s fears are unwarranted, and they can even point to Justice Anthony Kennedy’s opinion in Friday’s case, which promises “that religious organizations and persons [will be] given proper protection.” But I don’t think Sen. Lee is crazy. In the 1983 Bob Jones University case, the court ruled that a school could lose tax-exempt status if its policies violated “fundamental national public policy.” So far, the Bob Jones reasoning hasn’t been extended to other kinds of discrimination, but someday it could be. I’m a gay-rights supporter who was elated by Friday’s Supreme Court decision — but I honor Sen. Lee’s fears.
Nonetheless, the IRS revoked the University’s tax exempt status because of those beliefs and policies. In Bob Jones University v. US, 461 U.S. 574 (1983), the Supreme Court held that the first amendment's free exercise provisions did not prohibit the IRS from revoking the tax-exempt status of a religious university for no other reason than that those practices are contrary to a compelling government interest, such as eradicating racial discrimination.
Same-sex marriage is now a fundamental right under the Constitution. What Mr. Oppenheimer is not (wink, wink) suggesting is that someone use the Bob Jones precedent to revoke the tax exempt status of any church or congregation that preaches against same-sex marriage or refuses to accept and ratify such “marriages” as religiously conforming.
And that, dear friends, is what the hard-liners in the so-called “gay rights” movement want. They do not seek the long-cherished American “right to be left alone.” They got that from Obergefell. They want to force any Christian who believes that homosexual conduct is a sin tosay “Oh, I was wrong. The Bible is wrong. You are right.”
If they don’t get that, then along with Mr. Oppenheimer, “ a gay-rights supporter who was elated by Friday’s Supreme Court decision,” they will continue to look for any way to destroy Bible-believing Christian churches. And I do believe that the attack will be aimed solely at Christian churches. Bible-believing churches think homosexual conduct is a sin. They, and I include myself here, also believe that there are plenty of additional sins to go around and we are all sinners and will be until Judgement Day. But Islam thinks homosexual conduct is a capital offense. However, I’ve heard no one suggest that an effort be made to silence the teachers in that faith.
And, for liberals, there is another benefit to this ploy. Money!!!! That is what Mr. Oppenheimer really wants. Like Henry VIII, he wants the “fortunes” that are currently tax-free in the accounts of churches and other religious and non-profit entities. Everybody wins—except American citizens who can no longer rely on the protections afforded by the Constitution!