Does Same-Sex Marriage Threaten Religious Freedom?

 

(For an update about the Supreme Court decisions and 2013 legislation, see this new post)

 

One peculiarity of the marriage equality debate is the fact that the most vocal opponents of laws legalizing same-sex marriage are the people who are arguably the least affected by them. It is easy to understand why some people favor marriage equality – people in same-sex relationships, and their friends and families who support them, have a fairly tangible stake in the outcome. It’s harder to identify what is at stake personally for marriage equality opponents, so their arguments are usually made on behalf of society as a whole. Their main arguments fit into the following categories:

• Same-sex marriage “de-values” traditional marriage;
• God says he doesn’t like it;
• Slippery slope to other non-traditional marriages (i.e., to animals, polygamy);
• It threatens the religious freedom of clergy members.

The first three of these arguments hardly merit discussion—not because they aren’t contentious, but because debate is practically futile. The first two are wholly based on personal values and belief systems that are unlikely to change based on rational arguments, and slippery slope arguments are logically fallacious on their face. Even if these arguments were valid, it is difficult to see how the advocates of these arguments are affected – if your god doesn’t like gay marriages, you won’t get one; and if you don’t like the idea of polygamy, you won’t take multiple spouses.

The potential threat to religious freedom, however, is at least worth examining because it could directly impact people other than those entering same-sex unions. The supposed threat here is that laws allowing same-sex marriage will require religious officials to solemnize marriages to which they object based on religious doctrine, require churches to make facilities equally available for same-sex marriage ceremonies, or at the least expose them to civil lawsuits for discriminating against same-sex marriages.[i] There is something personally at stake for religious officials and clergy in this case. Even most supporters of same-sex marriage would agree that this would be a significant transgression of First Amendment religious freedom as well as bad public policy. However, as one examines the various laws allowing same-sex marriage or other unions, this seems to be a threat in only theory and not in practice.

States Recognizing Same-Sex Relationships

Full civil marriage rights are currently afforded to same-sex couples by six states – Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont – as well as the District of Columbia. Two more states, Washington and Maryland, have passed legislation to allow same-sex marriage, but face the possibility of being overturned at the polls this November. And of course there’s California, where stays in the Prop. 8 appeals process has left marriage equality in limbo.

In addition, there are ten states[ii] that do not offer same-sex “marriage” but allow same-sex couples to enter civil unions or domestic partnerships. These range from civil unions that are legally equivalent to marriage and even require a ceremony (such as in Delaware) to domestic partnerships that confer a more limited set of rights and obligations than marriage (and often stricter requirements, such as proof of cohabitation for a specified time period) and involve no ceremony, just filing registration paperwork with the county clerk.

Religious Freedom Clauses

Of the nineteen aforementioned jurisdictions offering (or about to offer) same-sex couple recognition, fourteen of them have statutes explicitly exempting religious officials from the obligation to offer marriage solemnization to same-sex couples. Many, such as Washington’s, not only exempt clergy from performing ceremonies, but also allow religious organizations to refuse any sort of accommodations, facilities, privileges, or goods relating to a same-sex marriage, and provide immunity from any civil action relating to such a refusal.

The five states that recognize same-sex couples but do not have such statutory religious exemptions are California, Iowa, Maine, Massachusetts, and Wisconsin. However, there is still very little danger that religious freedom would be infringed in any of these states.

Wisconsin’s and Maine’s domestic partnership laws are explicitly intended to be much weaker than marriage. The first section of the Wisconsin law provides:  “the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with or a violation of article XIII, section 13, of the Wisconsin Constitution” (which limits marriage to one man and one woman and even prohibits the recognition of any status “substantially similar to marriage”). Maine’s domestic partnership status primarily affects issues that arise after the death of one partner, such as inheritance and the right to make decisions regarding the deceased’s remains. Maine’s Dep’t. of Health and Human Services, which administers the partner registry, provides an explicit warning that domestic partnership is not a marriage on the registry’s instruction form. In both states, a domestic partnership can be formed just by filling out a short form and mailing it to a state agency with a small fee. Neither state requires any type of ceremony for their domestic partnerships, nor do they not appear to anticipate such ceremonies. If domestic partnership ceremonies do not exist in practice, there is no need to exempt religions from performing them.

In California, Iowa, and Massachusetts, same-sex marriage was legalized by their state supreme courts rather than through legislation (although California is on hold). Both California and Iowa still have statutes on the books that prohibit recognition of same-sex marriages, so a religious exemption would not make much sense in context of their marriage laws. Massachusetts is the only state that has updated its statutory law to allow same-sex marriage without adding a religious exemption clause. Yet in all three of these states, the courts have provided a religious exemption via judicial case law. California’s 2006 opinion in In re Marriages provides: “no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” Iowa’s Supreme Court observed: “We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman.” And although Massachusetts’ Supreme Court relegates this clarification to a footnote, it nonetheless notes: “Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage.”

States Considering New Expanding Same-Sex Recognition

If religious organizations and clergy are safe in the states that currently recognize same-sex unions, what about those considering new marriage laws? There has been a small flurry of bills in states that already have civil unions or same-sex marriage that seek to re-affirm religious freedom, but none of these are ground-breaking and are mostly duplicative of current law. Being an election year, most state legislatures are deferring marriage equality questions to ballot initiatives. However, a few states have active bills considering the issue, all of which include religious freedom clauses.

• Minnesota – SF1427 and HF1710would grant full marriage rights to same-sex couples; contains a religious freedom provision very interestingly framed as an argument for allowing same-sex marriages: “The state should not interfere with the religious beliefs of its people. Just as a church or religious denomination that objects to same-sex marriage has the right to refuse to solemnize those marriages, a church or religious denomination that believes in the value of same-sex marriage should have the right to solemnize those marriages.”
  • Note – Minnesota voters will decide on a constitutional amendment banning same-sex marriage in November 2012

• Illinois — HB5170 would turn the state’s existing civil union law into full marriage; contains a religious freedom clause.

• West Virginia — HB4569 would create “separate but equal” civil unions; contains a broad religious freedom clause that extends to a religious institution refusing to “recognize a civil union as valid,” and provides immunity from civil action.