People are entitled to their own (religious) views. 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. —Evan Wolfson, president of the gay rights organization Freedom to Marry
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."
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.
For conscientious objectors, the conflict over military service surfaced again when the United States instituted its first draft during the Civil War. While racism was certainly one motive for protesting the draft, pacifists who chose not to enlist in the Union Army had to pay $300 or find a replacement.
In World War I, conscientious objectors were allowed to serve in non-military roles, but those who refused to participate in any way were hauled off to military prisons. Among those protesters was John T. Neufeld, the son of a Mennonite minister, who was court martialed and sentenced to 15 years of hard labor at Fort Leavenworth, Kan., but paroled to a dairy farm and then released after six months.
"One of the difficult events of his life, but from which God gave him the strength to be victorious," read a memorial of Neufeld, who later became a minister himself.
If there were to be a draft today, conscientious objectors would be required to make their case before a government Selective Service board, which could reject their pleas or assign those they deemed legitimate pacifists to perform alternate community service for the same amount of time they would have served in the military.
This type of quid pro quo is a common solution for people seeking a religious exemption from a government- or workplace-enforced law, said Laycock. For example, he explained, state and federal laws allow people who object to labor unions on religious grounds to donate their dues to a charity instead.
That's how a federal judge in Ohio ruled in the case of a Roman Catholic who refused to pay dues to the local National Education Association because of the NEA's views on abortion. "I'm a life person and I don't agree with abortion at all," schoolteacher Carol Katter told the Columbus Post-Dispatch in 2007. "I was not going to give one cent to those causes."
But the U.S. Supreme Court didn't offer any give-and-take for an Amish employer who lost his case against paying Social Security tax because it violated the tenets of his faith. Nor did the justices rule in favor of Alfred Smith and Galen Black, Klamath Indians who were fired from their state jobs as drug counselors for using peyote in a tribal religious ceremony.
The state of Oregon denied the pair's claim for unemployment benefits because they were terminated for breaking the law, which banned peyote as an illegal drug. Smith and Black sued, and their claim that Oregon denied their right to religious freedom made it to the U.S. Supreme Court, which ruled in favor of the state in 1990.
Justice Antonin Scalia wrote in that opinion that letting individual conscience become a law unto itself contradicted common sense and could lead to anarchy. But he acknowledged there were state legislative exemptions for the sacramental use of peyote and said that's why legislatures, not courts, are the place to seek exemptions from laws that burden religious practice.
"What followed was a lot of religious exemptions in (federal and state) statutes" Laycock said, including the federal Religious Freedom Restoration Act of 1993, which requires government to show its interests are being applied in the least restrictive way in order to override a religious exemption.
In fact, a New York Times analysis showed that between 1989 and 2006, more than 200 protections or exemptions for religious groups were tucked into congressional legislation. Add to that the thousands of other exemptions to state and local statutes or executive rules and regulations, along with numerous court rulings creating breaks for religions and their followers.
But the historically broad-based support for religious exemptions has been breaking apart in recent years.
"More than anything, it’s the gay rights issue that broke that up," Laycock said.
Amending anti-discrimination laws to include sexual orientation and the legalization of same-sex marriage in 14 states and the District of Columbia has created an inevitable collision between the equal rights of gays and lesbians and individual conscience rights.
One recent example of that clash involved Phyllis Young and her Aloha Bed & Breakfast in a residential Honolulu neighborhood. She has some rules for renters: They share her bathroom, they remove their shoes inside the home and if they aren't married they can't share a bed.
That even goes for the Youngs' daughter and her live-in boyfriend when they visit the home, according to court documents.
"I would be violating my faith in allowing unmarried or same-sex couples to stay in (a) room in our house," Young, a Catholic, testified. "I have to be obedient to God."
But a judge found that even residential exemptions to Hawaii's anti-discrimination statute and the federal Fair Housing Act — which allow homeowners to discriminate based on religious or any other beliefs — didn't protect Young when she refused to rent a room to a lesbian couple. The judge said if Young advertised her home as a public accommodation, she was subject to the state's nondiscrimination laws.
Young has appealed the ruling.
Defenders of traditional marriage contend such conflicts will multiply when same-sex marriage is legalized, creating intractable differences between individual religious freedom and gay rights that not even exemptions can fix.
"Same-sex marriage can't live alongside religious freedom in a society that has millions of Christians, Jews and Muslims who say conjugal marriage is the only kind there is between a man and a woman," said Matthew J. Franck, director of the Witherspoon Institute's William E. and Carol G. Simon Center on Religion and the Constitution.
He said lawmakers can't pass enough exemptions to fix all the unintended conflicts that will arise in employment, housing, health care and other unanticipated areas of public life when someone won't acknowledge a gay marriage for religious reasons.
"That’s why I am not in favor of (exemptions)," Franck said. "And when you add them into a bill (legalizing gay marriage) it allows a legislature to do the wrong thing, which is pass same-sex marriage, which is bad for marriage, bad for kids and bad for religious freedom no matter what concessions you think you are making."
Franck normally wouldn't be in the same camp with gay marriage proponents, but when it comes to religious exemptions, they agree that trying to add religious protections can create more problems than it fixes.
Wolfson, an attorney who has been defending the legal rights of gays and lesbians for more than 20 years, explained the balance between nondiscrimination laws and religious freedom has already been struck, and carving out new exemptions just because gay people are being included under the antidiscrimination umbrella would upend that balance.
"This is about equal protection under the law," he said. "There's nothing special about gay rights. They are simply rights made available to everyone. The freedom to marry is not something gay people invented. It's something we are seeking to be shared with others."
If exemptions are offered, gay rights advocates won't budge beyond what's already been granted in the past to protect the rights of religious institutions. In other words, allowing a business owner to deny services or benefits to a gay or lesbian couple for religious reasons is off the table.
"That goes into uncharted territory," said Lois Perrin, legal director of the ACLU in Hawaii, where lawmakers passed a same-sex marriage law that limits the exemption to clergy and religious facilities — not individuals.
"Everyone is entitled to their religious beliefs," Perrin said. "But no belief is an excuse to engage in unlawful discrimination. We may not all feel the same way about gay people but we do agree that we should treat people fairly and with respect."
Despite opposition from both sides of the marriage debate, Wilson remains optimistic that exemptions addressing individual religious freedom are possible and remain as key today as they have in the past to smoothing the way for societal change.
A co-author with Laycock and Anthony Picarello Jr. of the 2009 book "Same-Sex Marriage and Religious Liberty: Emerging Conflicts," Wilson has spent the past four years firing off lengthy letters that argue for exemptions and offer model legislation to interested lawmakers and grass-roots stakeholders.
"I am very influenced by the possible," she said. "I don’t understand why people can’t work together in constructive ways."
She points to legislation that ironed out conflicts after abortion was legalized, creating a conflict for religiously affiliated hospitals and health care workers who wouldn't offer or participate in an abortion for conscience reasons. Congress and state legislatures passed laws that exempted not just hospitals but workers as well.
"We still found a way for people to live together in peace. We can do the same thing with same-sex marriage," she said. "Like we did with abortion, we can have access without surrendering religious liberty."
For supporters of gay marriage, Wilson and Laycock point to same-sex marriage legislation in New Hampshire, New York, Connecticut, Maryland and Washington state as examples in which religious exemptions played a critical role in the legislation passing.
While the exemptions didn't go as far as Wilson would like, she said they did shore up the existing protections for clergy and churches and in some cases expanded those protections to religious organizations like the Knights of Columbus.
"We've had more success than reasonably expected," said Laycock, who along with a group of other legal scholars also writes to lawmakers urging stronger religious liberty protections in legalizing gay marriage. "But no one has been able to sell an individual exemption to a legislature."
Delaware would be the exception, where sitting judges are exempt from performing same-sex marriages if they don't want to.
Wilson anticipates more individual exceptions when the marriage debate begins in the 30 states that don't include gays or lesbians in their nondiscrimination statutes or have a constitutional ban on same-sex marriage. In many of those states, she said, particularly those in the Bible belt, religion plays a big role in public life and the culture is more conservative.
That debate will be coming to those states, observers agree, now that the U.S. Supreme Court struck down the federal Defense of Marriage Act this year and public opinion polls show a growing acceptance of same-sex marriage. When a proposal reaches a statehouse, opponents have a choice to make: negotiating up front for exemptions or fighting gay marriage without making any concessions.
"Do you fight same-sex marriage on its merits to the bitter end and squander all your moral capital?" Wilson asked. "If you have been fighting at that first barricade saying no to the whole idea of same-sex marriage, it's hard to flip to that second position (of asking for an exemption) and have any credibility."
For Evan Corpuz, a gay activist and practicing Catholic who has lived in Honolulu since 1987, some religious groups lost that credibility while fighting same-sex marriage over the past two decades by saying gay marriage would corrupt society. "Some of the things they said (about the gay community) would make you want to throw up," he said.
The claims that homosexuality is immoral are one reason gay rights advocates dismiss threats to religious liberty as a desperate diversionary tactic by groups that have lost the nondiscrimination argument and will lose on marriage as well.
"It’s not about marriage," Wolfson said. "It’s about trying to change general principles of nondiscrimination that have been working fine for decades. They are just trying to change the subject and come up with something else."
While Wilson agrees the debate has turned ugly and judgmental, she contends that marriage's historical link to religion introduces a new dynamic into the equal rights equation that warrants new exemptions to help everyone ease into change.
"We need to find ways for religious people who are already out in the marketplace and started businesses long before same-sex marriage started anywhere in the world," she said. "They can't suddenly retrofit because something came along that they are deeply opposed to for religious reasons."
It remains an open question as to whether legislatures or courts are the best place to create those exemptions.
Wilson favors the political environment, where multiple interests can be heard and balanced "in a way that hopefully maximizes the good of the entire group."
But those political compromises, often hammered out behind closed doors by a few people, don't usually produce the best results, said Laycock, who favors the courtroom as the best place to work out tough questions of equal rights.
He acknowledges courts aren't immune to partisan politics, but said "at least there is a chance of getting principled consideration of how much harm or cost a religious exemption would actually impose."