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

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.

Strategic questions

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.

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