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

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."

Resolving differences

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