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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

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.

Diverse opposition

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.

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