When the U.S. Supreme Court weighs the question of same-sex marriage in April, it is expected to hear arguments on whether individual states or the federal government can define marriage.
Looming behind those questions are issues of personal conscience and culture: Can a state compel individuals to supply goods or services for a marriage whose terms violate their religious conscience? Would exemptions to marriage laws be strictly limited to religious organizations and clergy? And, would the ruling ignite a new culture war?
Robin Fretwell Wilson, a law professor at the University of Illinois Law School in Champaign, said it's time for the high court to consider the issue, but justices should weigh matters of conscience for people of faith along with the constitutional question in order to bring Americans together on the outcome.
"I think (religious liberty) is a very hard question," Wilson said Friday. What she called "pockets of resistance" to same-sex marriage will endure, she said, so "it's important for the court to signal those disappointed (by a ruling either way) have the ability to step off somehow."
Attorney Jennifer C. Pizer, a senior counsel with the Lambda Legal Foundation, a gay rights law firm in Los Angeles, doesn't anticipate the court delving into questions of conscience rights of business owners and others should the justices decide there is a constitutional right to marry.
"The Supreme Court is unlikely to establish principles about marketplace regulation in a discussion about who can marry whom, but there may be some acknowledgement of the strong views that people have on both sides of these issues and a reminder of the right to marry is a matter for secular law, not religious law," she said.
National Organization for Marriage president Brian S. Brown said, in a statement, that his group hopes the justices will affirm religious rights when it comes to marriage and its definition.
"We will be watching this case closely and anticipate an eventual victory for the democratic process, religious liberty, and the cherished institution of marriage which forms the very bedrock of our society," he said.
The question of conscience carve-outs for individuals, as opposed to churches, is one factor spurring a push for state-level bills that would reinforce individual religious conscience rights, as in the case of faith-based adoption agencies and same-sex couples in Michigan.
Some 20 states already have religious liberty bills on the books, but efforts in 10 states, including Georgia, Michigan and Ohio, fell short last year. Lawmakers in those states are expected to take up the effort again this year. And while many of the bills had no reference to marriage issues, one religious liberty observer said individual rights issues remain.
"All of the existing protections go to the boundaries of religious institutions," said Tim Schultz, president of the 1st Amendment Partnership in Washington, D.C. "None go to values-based businesses. A pure, for-profit wedding chapel, or a wedding photographer, or a landowner would not be protected by the (same-sex marriage) laws in New York. Many legislators believe they should be protected, and that's what they'll be talking about" in state legislatures this year.
However the Supreme Court rules on marriage, law professor Wilson said the justices risk getting ahead of Americans, who, surveys and public actions indicate, are coming around to the idea of civil marriage equality. Move too far, she said, and those Americans not ready for a change will resist, much in the way millions of Americans still oppose the abortion rights advanced by the Supreme Court in its 1973 Roe v. Wade decision.
"If you get in front of the people, that's when you get bitter resistance," Wilson said. "It's important for the court to say even if (the) Constitution mandates this, there's a third way for people to live in peace."
And Archbishop Salvatore J. Cordileone of San Francisco, chairman of the U.S. Conference of Catholic Bishops’ Subcommittee for the Promotion and Defense of Marriage, linked the marriage and abortion questions directly when commenting on the Supreme Court's decision to hear the marriage appeal.
"A decision by the Supreme Court on whether a state may define marriage as the union of one man and one woman may be the most significant Court decision since the Court’s tragic 1973 Roe v. Wade decision making abortion a constitutional right," he said in a statement.
Pizer disagrees on whether a marriage decision favorable to same-sex couples would ignite another American culture war.
"I think the issue of equal treatment of gay people and the freedom of all people to marry the person they love is a different question" from the issues surrounding abortion, she said. "The people I've worked with have faced life crises where they needed to be recognized as married, such as with Social Security survivor benefits so the surviving partner can stay in their home. We've been working on this issue for decades."
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