TOWN OF PEWAUKEE – Will the US Supreme Court’s decision legalizing gay marriage affect religious schools? Probably not, according to conservative public interest lawyer Rick Esenberg, who addressed the question at the Wisconsin Council of Religious and Independent Schools’ annual conference Feb. 12. Esenberg, who described himself as a “constitutional conservative,” is founder, president and general counsel of the Wisconsin Institute for Law and Liberty.
After reviewing the Supreme Court’s 2015 Obergefell decision, Esenberg said, “What does it mean for religious schools? Directly, nothing,” because religious schools are not state agents, even if they receive direct or indirect governmental financial support.
Esenberg noted that religious schools have partial exemptions from laws against employment discrimination.
“There is some exemption as to the scope of that exemption,” he said, adding, “I think schools will be OK,” especially if they have made their religious mission explicit.
In the long run, Esenberg added, “Supreme Court decisions have a way of affecting public understanding in a way that is broader than their specific legal application,” pointing to the 1954 decision outlawing school segregation as an example. On the issue of gay marriage, “public opinion in this area is changing; I’m amazed at how rapidly.”
Ultimately, Esenberg said, the Supreme Court will determine how broadly the Obergefell decision will be applied, and that will depend on the makeup of the court. He said there’s near-universal agreement that Democratic presidential aspirants would make very different appointments to the court than Republicans, but he wasn’t sure about where possible Donald Trump appointees might go.
“I’m not sure where Judge Judy comes down on the legal issues of the day,” he quipped.
