Equal protection seems to be unbounded and, speaking politically, it feels like what’s fair always wins over what might be right. But at end of day when equal protection and First Amendment free exercise of religion rights butt up against each other, then churches should be able to practice what they preach and believe. —Jonathan Johnson
A Utah businessman has launched a national campaign to amend state constitutions to shield religious institutions from performing same-sex marriages.
Jonathan Johnson, executive vice chairman of the online retailer Overstock.com, wants to start the movement by amending Utah's Constitution, which already prohibits same-sex marriage. But Johnson said recent court rulings and popular sentiment favoring gay marriage indicate the legal definition of marriage could change in Utah and other states in the near future.
"People may have said we don’t need this six months ago," Johnson said. "I think with what the Supreme Court did earlier this summer people are less likely to say that now."
The divided high court ruled in June in two cases involving same-sex marriage. In one case, the justices struck down the Defense of Marriage Act, a federal law that denied federal benefits to gay couples who are legally married in the states where they live. In the other case, the court allowed gay marriages to resume in California by letting a lower court ruling in that state stand that struck down Proposition 8, a constitutional ban on gay marriage in that state.
Johnson said he agreed with the justices on letting states determine the legal definition of marriage. But the ruling that struck down DOMA because it violated the Fourteenth Amendment's guarantee of equal protection worried Johnson, who is also a lawyer.
"Equal protection seems to be unbounded and, speaking politically, it feels like what’s fair always wins over what might be right," he said. "But at end of day when equal protection and First Amendment free exercise of religion rights butt up against each other, then churches should be able to practice what they preach and believe."
Anticipating such a constitutional collision, Johnson is crafting a proposed amendment that would prohibit requiring a religious organization to "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs," according to a preliminary draft.
Johnson said he would like the proposed amendment on the 2014 general election ballot. That would mean the House and Senate of the upcoming Legislature would need to approve it by two-thirds majorities when it convenes in late January through early March.
Attempts to reach GOP leadership in either house for comment were unsuccessful Friday. But Johnson said he has had discussions with several Utah lawmakers, whom he declined to identify, and doesn't expect problems getting the proposed amendment through the Republican-dominated Legislature.
And he won't get much pushback from at least one Salt Lake Democrat, Sen. Jim Dabakis, who is also chairman of the state Democratic Party and gay.
"I don't see anything wrong with that," Dabakis said. "No sane person that I know of wants to coerce or force any religion to perform any ceremony that they are not comfortable with."
Dabakis said he sees Johnson's idea as an opportunity to open a new discussion on same-sex marriage. As part of that discussion, Dabakis would want to propose the possibility of dividing marriage into a civil ceremony for all couples, and, if they choose, a separate religious rite performed in a house of worship.
"This would be a great opportunity to bring this up, and I hope it could lead to a grand compromise where Utah would lead out for the entire nation giving strong respect to religious liberties and recognizing the political reality and rights of everyone," Dabakis said.
Johnson said since The Daily Caller ran a story on his proposal this week, the office running the campaign has received inquiries from people in five other states. He declined to identify the states, explaining it was too early in the process to identify them.
He has registered a political action committee, First Freedom PAC, with the state. State records show it has yet to report any funds raised, although Johnson told the Daily Caller that he has “raised low six digits — and we’re not really trying yet.”
It's likely his idea will take hold as same-sex marriage has become a central issue for political and religious conservatives rallying around the cause of religious liberty.
Since the Supreme Court ruled, gay rights advocates have challenged laws in Ohio and Pennsylvania, and they hope the decision will help them in existing legal battles in Hawaii, Illinois, Michigan, New Jersey, New Mexico, Nevada, North Carolina and Utah.
Religious liberty advocates also point to instances of private businesses being penalized by the state and the courts for not accommodating same-sex couples because it would violate the owners' religious beliefs.
Johnson said he has been asked to broaden the amendment to include private businesses, but he fears that could hurt more than help his proposal. "If it gets broader it will just create more areas of controversy," he said.
But it is unlikely that religious institutions would be forced by the court or the state to perform same-sex marriage ceremonies, said Douglas Kmiec, a professor of constitutional law at Pepperdine University.
He explained past cases of equal protection trumping religious free exercise have occurred when racial discrimination was the issue. But same-sex marriage doesn't have the historical legacy of violent opposition that racial discrimination has, Kmiec explained, leading some to argue that the court won't draw the same distinction in same-sex marriage cases.
"Nevertheless, I would expect an effort to make religious bodies that do not approve of same-sex marriage ineligible for public benefits," he said, "be it tax exemptions, deductibility of donations, school vouchers and subsidies, and other public programs.”