National Edition

Why America's long history of protecting religion is at the center of gay marriage debate

Published: Thursday, Nov. 14 2013 5:00 a.m. MST

A speaker address hundreds of persons gathered for the "Defend Marriage Lobby Day" in the rotunda of the state Capitol in Springfield, Ill., Wednesday, Oct. 23, 2013, as opponents of gay marriage held their own event in Springfield, a day after thousands of supporters rallied for the legislation. Wednesday's events included pastors from a number of prominent Chicago area churches. Opponents were trying to target moderate Republicans and socially conservative members of the House Black Caucus.

Randy Squires, Associated Press

Early American colonist Richard Keene wasn't interested in training for the Maryland militia in 1658, and with good reason — his Quaker faith prohibited him from bearing arms.

But some locals had no sympathy for pacifists like Keene. One sheriff, angered by Keene's resistance, drew his cutlass and made a pass at Keene's chest, declaring, "You dog, I could find in my heart to split your brains," according to an account in the history book "Liberty and Conscience," edited by Peter Brock.

Conscientious objectors eventually won their religious exemption from military service, but not before paying fines, serving jail time and enduring public shame that lasted through World War II.

"The debate over military service got heated at times, and in some ways it’s the highest-stakes example of the religious exemption," said Douglas Laycock, a law professor at University of Virginia and a recognized expert on religious freedom. "(During the Revolutionary War) the population wasn’t very large, national existence was on the line and there was some resentment of the Quakers."

Defending individual conscience rights has often been divisive, whether the issue has been military service, vaccinations, union dues or school curriculum. Today, the battleground is the legalization of same-sex marriage, which is testing the limits of exemptions to balance personal religious freedom and equal rights for gays and lesbians.

Headlines have highlighted the personal conscience aspects of the controversy, including penalties and lawsuits against innkeepers, bakers, a florist, a photographer, government clerks and therapists who have refused to serve gay couples. But gay activists contend that exempting people who don't want to do business with them for religious reasons would cause more problems than it would solve. In the 15 states where gay marriage has been legalized — Hawaii being the latest just this week, with Illinois expected to follow next week — only one state has an exemption that goes beyond protecting clergy and religious organizations to include individuals.

"People are entitled to their own (religious) views," said Evan Wolfson, president of the gay rights organization Freedom to Marry. "But to go from that to saying we should start issuing licenses to discriminate based on people’s views is a recipe for unraveling democracy itself, let alone upending the balance that has worked well to protect religious freedom as well as civil rights."

On the other side are traditional marriage advocates who don't see any way to reconcile their differences with supporters of same-sex marriage. Rather than negotiating a truce, they want to reverse an accelerating trend toward including gays and lesbians under nondiscrimination and marriage laws.

And in the middle is a group of legal scholars, faith leaders and politicians who believe the traditional way of hammering out a compromise through religious exemptions can still work today.

"Both groups have a lot in common in trying to live out their lives as whole people in terms of their religious and sexual identity," said Robin Fretwell Wilson, a family law professor at the University of Illinois and supporter of exemptions. "Both sides can walk away with substantial gains and dignity if the exemptions are calibrated so they never have to bump up against each other in a way that’s deeply problematic."

Exemption explosion

History backs up Wilson's optimistic outlook. While religious freedom enjoys strong protection in the Constitution, shoring up that First Amendment right to exercise one's faith has almost always been contentious.

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