Religious Exemptions in Same-Sex Laws Under Scrutiny
By Jacqueline L. Salmon
As a growing number of states legalize same-sex marriages (it's up to five now), increasing attention is focusing on exemptions for religious institutions and individuals who find the concept morally objectionable and religiously untenable.
Some legal academics are pointing with approval to the religious exemptions contained in the Vermont and Connecticut laws that legalized gay marriage. They not only exempt clergy from performing same-sex marriages, they also give religious groups the right to refuse their facilities for same-sex marriage celebrations (for example, the Knights of Columbus wouldn't have to rent it hall for a gay marriage reception) and allow them to refuse to provide insurance benefits to same-sex partners. The Connecticut law also makes clear that religiously affiliated colleges wouldn't have to make its married student housing available to married same-sex couples, say legal experts. There are also limits on same-sex adoptions if a religious adoption agency is involved.
With those exemptions, said George Washington University constitutional law professor Ira Lupu on the legal blog Concurring Opinions, "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."
Not so fast. Religious conservatives who oppose same-sex marriage say they are very suspicious of religious exemptions. Some, such as those exempting clergy from performing same-sex marriages, are simply window-dressing because the First Amendment already protects clergy from such actions, they say.
Peter Sprigg, a senior fellow for policy studies at Focus on the Family, a Christian organization, said the laws generally protect only religiously affiliated organizations. The Christian college that has no formal religious affiliation could still be forced to house a married same-sex couple in married student housing, he said. It also doesn't protect religious individuals from providing services to married couple that contradict their religious beliefs--such as a Christian counselor who believes homosexuality is wrong being required to counsel a gay married couple. It also doesn't protect business people, such as a florist, who believe it is against their faith to provide goods and services to same-sex couples.
"I really don't put a lot of faith in religious exemptions," said Sprigg, whose organization opposes all same-sex marriage bills no matter what the religious exemptions. He believes they simply give a fig leaf to legislators who otherwise would be reluctant to vote for a same-sex marriage bill.
As for gay-rights groups, they don't have any objections to religious exemptions like those contained in the Connecticut bill, said Chris Edelson, state legislative director for the Human Rights Campaign, a gay-rights group based in Washington. Private groups "can discriminate." But if a group is open to the public, such as a business, "that is a different matter." Businesses, he said, should not be allowed to refuse to serve gay couples.
Robin Wilson, a law professor at Washington & Lee University who has been pushing for religious exemptions in states where legalizing same-sex marriage is under consideration, said she agrees with Focus on the Family that there is risk for commercial enterprises and also for individuals "in the stream of commerce" of same-sex weddings, such as wedding advisers, caterers and photographers who may be compelled to provide services even though they would violate an individual's deeply held religious beliefs.
"Conscience protections are a thoroughly American idea," she argued in a recent column in the Los Angeles Times. Since Colonial times, she says, "legislatures have exempted religious minorities from laws inconsistent with their faith."
As more states take up the issue, you can expect many more battles, with some pushing to expand religious exemptions to commercial enterprises, gay-rights groups pushing back--and conservative religious organizations pushing against the whole concept.
UPDATE: New Hampshire Gov. John Lynch said today he will sign a bill to legalize gay marriage, making the state the sixth to approve it, but only if the bill strengthens protections for religious groups opposed to gay marriage.
The bill has been approved by the state legislature. That version is not nearly as robust as Connecticut's and Vermont's, reports Robin Wilson. It merely allows members of the clergy to refuse to preside over a same-sex marriage. But, as noted above, that's already protected by the First Amendment. It is, she said, a "hollow guarantee" that "pays lip service to religious freedom."
Clearly, the New Hampshire governor agrees. He suggests broader language along the lines of Connecticut's and Vermont's. Under the bill, religiously affiliated organizations would not be required to provide services, facilities or goods if the request was related to a same-sex marriage and it would violate religious faith. It would also protect married student housing.
But, as we noted above, don't expect conservative religious organizations to climb aboard Lynch's bandwagon anymore than they have gotten aboard in Connecticut or Vermont.
Jacqueline L. Salmon
May 14, 2009; 9:44 AM ET
God in Government
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