Kendall Coffey: Religious Freedom Is Next Legal Clash

Obama: “America is a place where you can write your own destiny. We are a people who believe that every single child is entitled to life and liberty and the pursuit of happiness. There’s so much more work to be done to extend the full promise of America to every American—but today we can say, in no uncertain terms, that we made our union a little more perfect.”


Malzberg: Alright, a matter of opinion folks, and that’s what we got from the Supreme Court of course, a matter of 9 opinions, 5–4, in favor of gay marriage nationwide. Kendall Coffey, partner at Coffey Burlington LLC, former U.S. Attorney joins us. Kendall, welcome. Let’s start with today’s ruling and boy, the dissenting opinions, each one very strong and emotional, as was Kennedy’s ruling as well.


Coffey: Yeah, I mean, really eloquent expressions. At least you know that the 9 folks working up at [unintelligible] are just brilliant minds who are very convincing and eloquent in the way they write. It was a 5–4 opinion, I don’t think it was a surprise, Steve. I think most folks saw it coming out this way indeed. I think a lot suspected that Justice Kennedy, who has a past in this area, would be the author of the opinion.


Again, you look at the dissents from Chief Justice Roberts and his dissent was really talking about not whether it’s bad or it’s good, but really who makes the decision? And his emphasis was that a lot of states through their own democratic processes are validating same sex marriage—but in a democratic republic, should that decision rest with the people acting through their elected representatives or, and I’m quoting him, “with five lawyers, who happen to hold commissions authorizing them to resolve legal disputes?” Needless to say, Justice Kennedy’s opinion was also brilliantly reading.


If I could just highlight just one issue Steve (Malzberg: Yeah, please!) that kind of intrigued me and hasn’t got a lot of attention and that’s this: because I think most expected that it would come down the way it did and extend a constitutional right to same sex marriage, but what about those whose religious beliefs are such that as private actors they do not want to participate in, for example, a same sex marriage? That’s come up a lot, and you and I have talked about that a lot. I thought there was something interesting in Justice Kennedy’s opinion that may have referred to that where he describes that the first amendment provides protection of religious organizations and people so that they have proper protection in terms of adhering to their principles. So, I think his opinion obviously is very strong and in support of same sex marriage, I thought he was signaling that there may be some interest to looking into what are the religious protections extended to those as private individuals who disagree.


Malzberg: Well, yes. And if this case were to come up to this court, I wonder if Kennedy is a swing vote, maybe he would be swing and they’d be protected. Justice Alito said that “does this mean that people are going to have to, if they have strongly held beliefs, are they going to have to whisper them in private or are they going to be accused of bigotry whether it’s at the workplace, place of employment, school, or in the community?” and that is a very frightening thing. And you and I also I think talked about that in the oral arguments, Alito asked the question, I’m paraphrasing, to the supporter of gay marriage attorney, what if we rule your way will the tax-exempt status of churches who preach that a marriage is between a man and a woman be jeopardized? And the attorney gave his opinion and said well, that could come down the road (Coffey: Yeah) so that is something we have to watch for.


Coffey: Yeah, that may be the next big issue. You and I have also talked about on this show how under some state laws, they have fined or they have punished people who, for example, did not want to participate in a gay marriage as photographers or florists or things like that based on what were apparently sincerely held religious principles and I thought that Kennedy’s opinion signaled that that may have, when that decision comes up as it likely will, that may have an outcome that respects religious freedoms.


Malzberg: Yeah, that’s very interesting—very great catch there. Kendall, always great to talk to you, sir, thank you very much.


Coffey: Have a great weekend and a great week. The best of Fridays. Thank you.


Malzberg: Kendall Coffey ladies and gentleman.


Check out the video here.