Marriage ruling likely to impinge on religious rights

This past week, gay and lesbian couples lined up at county clerk's offices across California to exercise their new right to marry, bestowed on them last month by the state Supreme Court.

In its controversial decision, the court insisted that these same-sex marriages would not "diminish any other person's constitutional rights" or "impinge upon the religious freedom of any religious organization, official or any other person." Religious liberty would be unaffected, the chief justice wrote, because no member of the clergy would be compelled to officiate at a same-sex ceremony and no church could be compelled to change its policies or practices.

And yet there is substantial reason to believe that these assurances about the safety of religious liberty are either wrong or reflect a cramped view of religion.

The case for same-sex marriage, reduced to its essentials, is an attractive one. It is that the government in a liberal democracy ought not to impose any one moral vision on its citizens; moral decisions ought to be, as much as possible, a matter of private choice and not law.

But it should not follow that having allowed same-sex couples to come out of the closet, as it were, that religious people should in turn be confined to the sanctuary.

In the same-sex marriage decision, the state Supreme Court suggests that all will be well and good as long as the "official" activities of the clergy aren't affected. But that excludes religion entirely from a broad range of social welfare and other activities, despite the fact that the California Constitution declares: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed."

Evidence from previous and pending cases indicates that the court tends to take an extremely narrow view of people's "free exercise and enjoyment of religion" when they clash with another group's need for equal protection. This would seem particularly true following the In re Marriage Cases ruling, in which the majority equated the ban on same-sex marriage to the now discredited (and unconstitutional) ban on interracial marriages.

Religious liberty claims rarely, if ever, have prevailed in the face of complaints about racial discrimination. Conflicts about the rights of gays and those of religious believers demonstrate that these are not hypothetical fears. Consider the following: