Colliding causes: Gay rights and religious liberty

Published: Saturday, Feb. 11 2012 1:00 p.m. MST

"It's a right-wing talking point to stoke up fears for something that's not a problem," said Evan Wolfson, president of Freedom to Marry, a group dedicated to promoting same-sex marriage. "There's only one or two isolated examples (of clashing) as to how this has even been an issue. We settled this question in the country decades ago when businesses were saying 'We don't want to serve blacks or Jews, Latinos, Mormons,' and (the country) said 'No, when you're a business opening your doors to the public, you have to serve everyone. That's (called) non-discrimination in a democratic society.'"

But in a review of more than 1,000 state laws prohibiting discrimination on the basis of sexual orientation, gender or marital status, the Becket Fund for Religious Liberty discovered that 350 of those laws would be triggered, or become applicable for lawsuits, by the recognition of same-sex marriage.

That means that when individuals of faith decline to host a same-sex wedding in their catering hall, or refuse to provide health insurance benefits for a same-sex spouse, they can, and likely will be sued under one of those now-active 350 "anti-discrimination laws — laws never intended for that purpose," according to the 2009 report.

After all, when anti-discrimination laws were written, same-sex marriage wasn't even an issue, explains Robin F. Wilson, a law professor at Washington and Lee University School of Law and a co-editor of the 2008 book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts."

Back then, discrimination was about "burgers and taxis," Wilson says. "If I'm gay and you don't want to hand me a burger at Hardee's, it's hard to explain why — there can't be any real, moral conviction about a hamburger, it evinces an anti-gay animus."

But now, the issue is much broader than just getting lunch or a ride — it's about defining marriage, a topic that evokes deeply held religious beliefs. So, if someone doesn't want to participate in a same-sex wedding, whether they're a baker, a photographer or a town clerk, that doesn't necessarily mean they're anti-gay, Wilson says, it just means they have religious objections to participating in, and by extension condoning, same-sex marriage.

To protect those people, Wilson and her colleagues — who vary on their opinions of whether same-sex marriage should be legalized but who all support religious exemptions — wrote out several examples of protections and sent their ideas to New York legislators during their recent discussion of the issue.

The professors suggested that small business owners, individuals and religious organizations be protected against lawsuits if they refuse, on religious grounds, to help with a same-sex wedding or provide benefits or housing to same-sex couples.

(Such protections would be nullified if the gay couple couldn't get the good or service somewhere else without significant hardship — for example, the only tuxedo shop for 400 miles couldn't refuse to serve a gay couple.)

Thus far, legislators have only allowed exemptions for members of the clergy or big religious organizations.

While such protections are often touted as generous, they're actually "fake," says Wilson, since bishops, priests, rabbis and other religious leaders are already protected under the First Amendment from being required by the government to perform marriages that violate their tenets.

Yet some people of faith accept the clergy exemption gratefully, figuring that something is better than nothing, said Barrett Duke, vice president for public policy for the Southern Baptist Ethics and Religious Liberty Commission.

"If we (clergy members) take that carve-out to protect our own professional integrity, we are giving up the fight for the sake of all the faithful folks in our congregation who aren't going to get any protections," he said.

Duke worries that without sufficient religious protections in same-sex marriage laws, parents won't be able to speak up against changes in school curriculum that include teachings about homosexuality and same-sex marriage, as is happening in California, or that employees who share their opinions against same-sex marriage may face penalties or even the loss of their jobs. Duke even questions whether people of faith will have a harder time running for public office, "because if same-sex marriage is legal and they oppose same-sex marriage, they could be accused of not being able to fulfill the requirement of upholding all of the law."

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