The Blossoming Union of Same-Sex Marriage and Religious Freedom
posted by Ira Lupu
After approval of Proposition 8 in California last fall, who would have expected to find the movement for same-sex marriage and concern for religious freedom on common ground in the spring? As legislatures in Vermont and Connecticut have just demonstrated, however, a long-overdue reconciliation between claims of marriage equality and those of religious liberty is there for the taking.
In the fight over Proposition 8, social conservatives used arguments about religious freedom as a sword. Their most prominent arguments were spectacularly overstated. Some proponents of Prop 8 warned, for example, that recognition of gay marriage would lead to hate speech prosecutions of anti-gay pastors, and loss of tax exemption for churches that refused to host same-sex marriages. Though neither of these developments was remotely likely, some voters were apparently moved by these assertions to support Prop 8.
Very recently, however, same-sex marriage has gotten a tremendous boost. In early April, the Iowa Supreme Court and the Vermont legislature, acted in favor of same-sex marriage. On April 23, the Connecticut legislature did likewise. But Vermont and Connecticut, acting through the legislative process, took steps that are not open to courts in cases like that in Iowa. Both the Vermont and Connecticut legislatures acted to protect religious freedom as well as marriage equality. The recently enacted Vermont law recognizes the right of clergy to not preside over same-sex marriages; the right of religious organizations to refuse the use of their facilities to celebrate a same-sex marriage; and the right of fraternal benefit societies, such as the Knights of Columbus, to refuse to provide insurance benefits to same-sex partners of its members if the organization has religious scruples against doing so. The Connecticut law includes those three safeguards for religious liberty but goes farther still. It insulates religious organizations from liability for refusing to provide any goods or services when the request for such goods or services arises from a same-sex marriage – so, for example, a religiously affiliated college would not have to make its married student housing available to a married same-sex couple. And the Connecticut law exempts adoption and foster care services run by religious organizations from any obligation to serve same-sex couples, so long as these services are not government-funded. Thus, in Vermont and Connecticut, religious liberty became a shield for religious freedom against the intrusion of same-sex marriage on traditional religious values, not a sword to be used against all recognition of such marriages.
In light of the Vermont and Connecticut experience, religious conservatives and secular progressives now have the opportunity to reach political bargains with one another, where both sides agree to a regime of reciprocal accommodation and respect. And further political developments are in the works. Steve Schmidt, John McCain’s campaign strategist, is urging Republicans to stop opposing same-sex marriage. Same-sex marriage legislation is making progress in both Maine and New Hampshire; the proposals in both states, though still subject to potential gubernatorial vetoes, include religious liberty provisions.
Perhaps most prominently, Governor David Patterson has introduced a same-sex marriage bill in New York, which now offers a perfect laboratory in which to experiment. As of now, the only religious freedom recognized by Governor Patterson’s same-sex marriage proposal in New York is the right of clergy to not preside at such marriages. Those who champion the equalization of marriage in New York – where, unlike Connecticut, the courts have not ordered such a move — should be willing to agree to a set of carefully crafted guarantees, designed to ensure that equal-marriage measures do not pressure religious organizations to compromise their religious convictions about marriage and sexuality. A very strong candidate for inclusion on this list in New York would be the exemption for religious organizations engaged in adoption or foster care placement, but unwilling to make such placements with same-sex couples. Three years ago, in Massachusetts, Catholic Charities surrendered its license as an adoption agency over precisely this issue. New York (and other states, like Maine and New Jersey, also actively considering the same-sex marriage question) can be wiser than Massachusetts. Such an exemption would in no way imperil foster placements or adoption placements with same-sex couples, whose interests can be served by a wide variety of agencies, secular and religious. But the exemption may help persuade Catholics and others to accept state recognition of same-sex marriages, because state law would explicitly guarantee the freedom of each faith community to promote its own vision of marriage and family.
One sort of provision that should not be included in any such bill is the recognition of for-profit business owners, such as photographers, caterers, and others in the wedding trade, to be exempt on religious grounds from laws protecting those in same-sex marriages from discrimination. Only in the rare and special case of abortion – where some see human life at stake — does American law recognize the right of service providers, otherwise subject to non-discrimination laws, to refuse service on religious grounds. A religious exemption for business people in the marriage context – or, for that matter, a religious exemption for clerks asked to issue marriage licenses, which the New Hampshire law now contains – would represent a slap in the face to same-sex couples, and would be impossible to administer. How could decision-makers ever determine with confidence whether an individual claiming such an exemption was acting from sincere religious conscience, or visceral discomfort over proximity to a same-sex union?
Whatever concessions might be appropriately made to religious liberty, social conservatives cannot expect to get them for nothing. They should promise to support repeal of the federal “Defense of Marriage Act,” which blocks federal recognition of same-sex marriages. Moreover, conservatives should also promise to stop opposing same-sex marriage in states that choose to recognize such marriages. Neither side can be expected to act if the other does not.
In the wake of the bitterness in California, the Iowa ruling, the new laws in Connecticut and Vermont, and the proposed legislation in New Hampshire, Maine, and New York, the conflict between religious freedom and same-sex marriage is now squarely on the political table. For those who equate compromise with the fatal loss of fund-raising from those at the polar extremes, this political transaction will have no appeal. But if either side in the culture wars truly seeks all quiet on this Western front, the Vermont and Connecticut legislative precedents are very fresh, New Hampshire and Maine are in play, and New York represents a highly prominent stage on which to build further.
May 6, 2009 at 6:00 am
Posted in: Civil Rights, Constitutional Law, Politics, Religion
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Responses (9)
Marc - May 6, 2009 at 6:56 am
Fantastic post. Quick question. As more states legalize gay marriage and more litigation involving the “Defense of Marriage Act” inevitably springs up, what do you think the odds are of the Act withstanding increased scrutiny on judicial review?
Chip Lupu - May 6, 2009 at 7:34 am
No quick answer to that good question. The section of federal DOMA that refuses federal recognition to same-sex marriages legal where contracted has always been constitutionally vulnerable. You are right that more states acting to legalize gay marriage will make it more so. Per usual, Anthony Kennedy is the one to watch on this one, and I predict that he would vote to invalidate this part of DOMA.
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Jerry lupu - June 29, 2009 at 10:07 am
It is my understanding that a general provider of goods
or services, without any religious affiliation, has the freedom to refuse transacting their goods and services to
anyone without offering a reason. For example, I am under
the impression that stores, restaurants, etc. are permitted
to exercise such a freedom. Perhaps my basic premise is
faulty. The example of the wedding photographer’s choice
to refuse an assignment involving a gay marriage is what
brouht this to mind.
Thank you.
Chip Lupu - June 29, 2009 at 10:17 am
Your premise is faulty. Under federal law (1964 Civil Rights Act), restaurants and hotels may not refuse service based on race, color, or religion. Under the law of 20-plus states, though not all states, businesses engaged in for-profit provision of goods or services, open to the general public, are subject to similar restrictions, and the prohibited grounds of discrimination include sexual orientation as well as race, religion, gender, etc.. It was that sort of law (in New Mexico) of which the wedding photographer ran afoul.
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