Same-Sex Marriage, the Supreme Court, and Religious Freedom
Last week, the US Supreme Court heard oral arguments in high-profile same-sex marriage cases. Press reports and commentary were full of talk about standing, federalism, whether procreation is essential to marriage, what equality means, etc.
What was neglected was careful attention to a fundamental constitutional value and dimension of American life that will take a big hit if the Supreme Court validates marriage redefinition: the religious freedom of organizations and individuals who "cling" to the historic concept of marriage.
And yet one of the biggest issues at stake in these same-sex marriage cases is this: "Will gay rights trample religious freedom?" That's the title the Los Angeles Times gave a 2008 op-ed by Marc Stern (then with the American Jewish Congress; now with the American Jewish Committee) in which he gave an emphatic yes--unless specific steps are taken to protect religious freedom.
Stern listed a set of California examples that demonstrate how government rules and court decisions subordinate religious rights to LGBT rights. "In each of these cases, and other similar ones," he pointed out, "the government has acted in some way to forbid gays and lesbians from being demeaned. But allowing same-sex couples to force religious individuals or organizations to act out of accord with their faith is not cost-free either. Their dignity is no less affected."
What is needed is positive action by legislatures to build religious freedom protections into laws and regulations that intend to expand LGBT rights. This is not the kind of constructive work that courts usually do or even can do. It takes legislators and executive branch officials.
So what can they do to build up protections for people and institutions of faith whose convictions aren't "evolving" the way our culture believes they should? Marc Stern has been part of a group of constitutional law experts that has for several years been promoting to legislatures a set of legal provisions that will go far to protect religious freedom. Their argument: Clashes between religious freedom and same-sex marriage are predictable and already occurring. Legislators have an obligation to protect religious freedom, which is a constitutional right. And they are wise to act, in order to forestall the endless lawsuits and growing social strife that will result if marriage is redefined without adequate protections for dissenting persons and organizations.
Here are the religious freedom provisions that Stern and others recommend (unfortunately, no state has yet adopted all of these essential provisions):
(a) Religious organizations protected.
Notwithstanding any other provision of law, no religious or denominational organization, no organization operated for charitable or educational purposes which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required to
(1) provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of any marriage; or
(2) solemnize any marriage; or
(3) treat as valid any marriage
if such providing, solemnizing, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.
(b) Individuals and small businesses protected.
(1) Except as provided in paragraph (b)(2), no individual, sole proprietor, or small business shall be required
(A) to provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or
(B) to provide benefits to any spouse of an employee; or
(C) to provide housing to any married couple
if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs.
(2) Paragraph (b)(1) shall not apply if
(A) a party to the marriage is unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship; or
(B) in the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer's sincerely held religious beliefs.
(3) A "small business" within the meaning of paragraph (b)(1) is a legal entity other than a natural person
(A) that provides services which are primarily performed by an owner of the business; or
(B) that has five or fewer employees; or
(C) in the case of a legal entity that offers housing for rent, that owns five or fewer units of housing.
(c) No civil cause of action or other penalties.
No refusal to provide services, accommodations, advantages, facilities, goods, or privileges protected by this section shall
(1) result in a civil claim or cause of action challenging such refusal; or
(2) result in any action by the State or any of its subdivisions to penalize or withhold benefits from any protected entity or individual, under any laws of this State or its subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.
Adding in robust religious freedom protections such as the above language is a vital and constructive task for legislators. Whether they favor marriage redefinition or not, they are bound by their oaths to defend religious freedom, and they can defend religious freedom in practical ways that are not available to judges. Cases about marriage redefinition like those heard by the Supreme Court last week ought to be a wake-up call to legislators, whether they favor or oppose same-sex marriage.
(If the government and public decide that same-sex marriage is just the same as historic marriage, then it is true that many will see no justification for protecting religious organizations and people who disagree, and seeing no justification, activists will no doubt try to eliminate whatever religious freedom protections have been put into law. The only solution is to vigorously defend those protections. Our laws protect doctors and hospitals who refuse to perform abortions-even though the courts and many legislators want us all to believe that elective abortion is morally unproblematic and a fundamental right.)
For further reading:
Marc Stern, "Same-Sex Marriage and the Churches," in Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman and Littlefield, 2008).
Collection of letters to legislatures and governors advocating religious freedom protections if marriage is redefined, at Mirror of Justice.