This past week, gay and lesbian couples lined up at county clerk's offices across California to exercise their new right to marry, bestowed on them last month by the state Supreme Court.
In its controversial decision, the court insisted that these same-sex marriages would not "diminish any other person's constitutional rights" or "impinge upon the religious freedom of any religious organization, official or any other person." Religious liberty would be unaffected, the chief justice wrote, because no member of the clergy would be compelled to officiate at a same-sex ceremony and no church could be compelled to change its policies or practices.
And yet there is substantial reason to believe that these assurances about the safety of religious liberty are either wrong or reflect a cramped view of religion.
The case for same-sex marriage, reduced to its essentials, is an attractive one. It is that the government in a liberal democracy ought not to impose any one moral vision on its citizens; moral decisions ought to be, as much as possible, a matter of private choice and not law.
But it should not follow that having allowed same-sex couples to come out of the closet, as it were, that religious people should in turn be confined to the sanctuary.
In the same-sex marriage decision, the state Supreme Court suggests that all will be well and good as long as the "official" activities of the clergy aren't affected. But that excludes religion entirely from a broad range of social welfare and other activities, despite the fact that the California Constitution declares: "Free exercise and enjoyment of religion without discrimination or preference are guaranteed."
Evidence from previous and pending cases indicates that the court tends to take an extremely narrow view of people's "free exercise and enjoyment of religion" when they clash with another group's need for equal protection. This would seem particularly true following the In re Marriage Cases ruling, in which the majority equated the ban on same-sex marriage to the now discredited (and unconstitutional) ban on interracial marriages.
Religious liberty claims rarely, if ever, have prevailed in the face of complaints about racial discrimination. Conflicts about the rights of gays and those of religious believers demonstrate that these are not hypothetical fears. Consider the following:
• A San Diego County fertility doctor was sued for refusing to perform artificial insemination for one partner of a lesbian couple for religious reasons. The doctor referred the patient to a colleague, promised there would be no extra cost and offered to care for her during her subsequent pregnancy. The case is now before the California Supreme Court, and justices seemed hostile to the doctor's defense during oral arguments last month.
• Catholic Charities in Boston and San Francisco ended adoption services altogether rather than be compelled by anti-discrimination laws to place children with same-sex couples. In the Boston case, Catholic Charities was prepared to refer same-sex couples seeking to adopt to other providers, but that was not sufficient.
• A Lutheran school in Riverside County, Calif., was sued in 2005 under California's Unruh Act (which forbids discrimination by businesses) for expelling two students who allegedly were having a lesbian relationship, in contravention of the religious views of the school. The case was thrown out in Superior Court in January, but the students have appealed.
• Public school officials in Poway, Calif., so far have successfully barred students from wearing T-shirts that register their opposition to homosexuality on campus. One lawsuit made its way to the U.S. Supreme Court before being dismissed (as moot, because the students had graduated), but another federal lawsuit is pending.
In each of these cases, and other similar ones, the government has acted in some way to forbid gays and lesbians from being demeaned. But allowing same-sex couples to force religious individuals or organizations to act out of accord with their faith is not cost-free, either. Their dignity is no less affected. Unless claims rooted in equal protection under the law are to sweep away claims rooted in freedom of religion, a more sensitive balancing approach is essential.
This is particularly true in California. The state Supreme Court has treated such clashes as all-or-nothing propositions, and it seems to believe that once outside the church or synagogue doors, equality is always more important than religious liberty. California's high court, for example, denied a landlord's religion-based refusal to rent an apartment to an unmarried heterosexual couple, but Massachusetts' high court was willing to sanction such a refusal in cases in which alternative housing was readily available.
Given the array of church views on homosexuality, and the number of secular organizations offering social services to same-sex couples, allowing religious groups opposed to same-sex marriage to put that opposition into practice beyond the sanctuary is not likely to often seriously impede anyone.
Concurring in the May 15 California marriage judgment, Justice Joyce L. Kennard observed that the court's most important role was to preserve constitutional rights "from obliteration by the majority."If past rulings are any guide, it is religious rights that are likely to be "obliterated" by an emerging popular majority supporting same-sex relationships and it seems unlikely that the California courts will intervene. That's a shame.
Marc D. Stern is general counsel of the American Jewish Congress and a contributor to a forthcoming book, "Same-Sex Marriage and Religious Liberty."