Religious freedom and same-sex marriage: Pew Foundation Q & A

Many comment threads on this blog turn into discussions of same-sex marriage. Well here is a post where that conversation will be on point.

The Pew Foundation yesterday published a Q & A on the topic with “professors Robert W. Tuttle and Ira “Chip” Lupu of The George Washington University Law School to discuss how some states are trying to reconcile these and other potential conflicts between the legalization of gay marriage and the free exercise of religion.”

This is timely given the rush of legislatures in the northeast to enact same-sex marriage statutes. The latest news came from New Hampshire where the governor has threatened a veto unless a religious liberty clause is a part of the legislation. The sticking point is concern over the conscience rights of merchants to refuse to take part in ceremonies or activities involving gay marriage. Governor Lynch wants a wider set of exemptions and some gay marriage supporters want a narrow set of protections of conscience.

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  • http://theformers.wordpress.com Debbie Thurman

    According to same-sex marriage proponents, religious groups do not, and should not, have the federal constitutional right to apply religious criteria to activities outside their faith tradition. Thus, a state government does not violate the U.S. Constitution if it insists that all adoption agencies – even those operated by religious organizations – must be willing to place children with same-sex couples. A religious organization is not required to approve of same-sex marriage, proponents say, but is required to acknowledge the equality of such marriages for the limited purposes of adoption or other services.

    This, to me, is going to be one of the most contentious areas to hash out, and the one with the most devastating consequences if the Constitution is interpreted as suggested above. Already, adoptions are at critically low levels in this country. Some maintain that is because of the numbers of unwed mothers choosing abortion over adoption. For adoption agencies to be placed in th position of having to consider closing their doors for religious reasons will make a bad problem worse.

    I know the gay rights argument is that children are better off being adopted by gay parents than languishing in the foster care system. It’s hard to argue with that logic. But many believe they are better off with a mom and a dad, and that reducing those families who desperately seek to adopt will do harm.

    It’s so sad that the number of couples waiting to adopt in this country is roughly equivalent to the number of aborted babies.

  • Jayhuck

    If religious vendors applied their beliefs evenly and across the board I wouldn’t have a problem with it – but do they refuse services to non-Christians, do they refuse services to those planning on having open marriages, or any of a host of other things you would expect them to refuse services for because of their beliefs? I don’t see that happening.

  • Eddy

    I agree with Jayhuck that the vendors need to be consistent in their applications but I think there are multiple reasons why we don’t see it as often as we should…the main variant is that a same sex coupling is immediately apparent to a vendor and to all participants in the wedding whereas a couples’ religious beliefs or plans for an open marriage might only be apparent to the one who officiates the service, if even they are aware. (Ministers are well within their rights to ask these very personal questions; florists, photographers and caterers don’t have the same rights to probe.)

    One of my brothers had been living with his girlfriend for years and then they decided to get married. (It seems many women desire a church wedding even if they don’t attend church.) Anyway, to my surprise, I learned that they had approached several churches and were turned away because they were ‘living in sin’. One church finally took a different approach. They did inform my bro and his girlfriend about this quandary but they agreed to perform the service IF my bro and his girlfriend went through a period of abstinence and attended church classes and premarital counseling. As a result of this response, my brother and his wife both embraced a personal relationship with Christ, became active members of the church and remain faithful to this day.

  • http://www.boxturtlebulletin.com Timothy Kincaid

    The latest news came from New Hampshire where the governor has threatened a veto unless a religious liberty clause is a part of the legislation. The sticking point is concern over the conscience rights of merchants to refuse to take part in ceremonies or activities involving gay marriage. Governor Lynch wants a wider set of exemptions and some gay marriage supporters want a narrow set of protections of conscience.

    I believe that this may not be factually correct.

    Neither the Governor or the legislature has proposed exempting merchants from non-discrimination laws.

    Some activists are trying to use same-sex marriage to raise the idea of religion-based exemptions from the current non-discrimination laws, but this is not a sticking point for any of the parties that actually support same-sex couples. And

    there are not many examples of merchants denying services to gay persons (one, I think, in New Mexico where there are no legal marriages, civil unions, or domestic partnerships).

    Rather, the issue is the further clarification of the rights already owned by churches and ministers due to the Establishment Clause, along with those which likely are resident in religious-based groups for the same reason.

    The language proposed by Governor Lynch layed out that ministers and churches could deny same-sex couples the recognition of marriage and further that any related non-profit organizations could do the same.

    All of the gay organizations immediately stated that they have no objection to such protections being stated. Not only do gay folks not want to be married by someone who objects to them, but the largest protestant chuch in New Hampshire is the United Church of Christ, a denomination that has endorsed marriage equality and joyously performs marriages for same-sex couples.

    The Senate quickly adopted the revisions. But they ran into a roadblock in the House.

    The pro-marriage Republicans do want to legalize marriage. However, they object to the Democrat Governor just writing language and wanting it rubber stamped. So they sent the bill to a committee to craft their own language that would meet the Governor’s requirements but, as Rep. Steve Vaillancourt put it, “does not send a signal to the rest of the country that New Hampshire has gone farther than any other state”.

    The end result will probably be a marriage law that provides the same religious protections that Connecticut and Vermont provide. But it is not likely to reverse the current non-discrimination laws that disallow discrimination based on sexual orientation in “accommodations, housing, and private and public employment.”

  • http://www.boxturtlebulletin.com Timothy Kincaid

    Debbie,

    I think the Pew Forum slightly misstates the position of same-sex marriage proponents. From what I hear and read, they left out one important part.

    Thus, a state government does not violate the U.S. Constitution if it insists that all adoption agencies – even those operated by religious organizations – must be willing to place children with same-sex couples in order to receive state funding.

    For example, in Massachusetts the Vatican become aware that Catholic Charities has for many years been allowing gay couple to adopt those children which were the most difficult to place. It announced that they must stop the practice immediately (most of the MA board quit as a result). When the State informed them that they would not fund a policy that discriminated on the basis of orientation (and recognizing the chaos they were in), the Catholic Church made a political and PR decision, played the martyr, and stopped adoption services.

    However, the Mormon adoption agency never took state money. It continues to refuse to place children with gay couples and it continues to operate.

    I don’t know of any same-sex marriage proponants that wish to interfere with the Mormon (or Catholic) adoption services, provided that the taxpayer isn’t funding their religion-based denial of services. I’m sure there are some (anti-religous folks are everywhere) but this does not seem to me to be a commonly shared desire.

    While it is, perhaps, galling to some pro-marriage advocates to have to acknowlege that some folks don’t like their marriages and then to include in the language that they have so long sought a special carve out for those who have fought them, I do not believe that there is any organized effort to oppose such wording.

    In fact, from what I’ve heard, if the CA Supreme Court does not overturn Prop 8 on Tuesday, those who are crafting the language for the initiative for the voters to reverse Prop 8 will be including religious protections.

    Frankly, I wonder how much concern over religious protections is legitimate concern and how much is just PR in opposition to marriage rights. In other words, if 100% of all stated religious concerns were met, would these “worried people” be satisfied and support civil marriage, or would they simply move on to the next argument against marriage?

    Some, no doubt, would be content with their protections. In fact, a recent survey of Mainline Christian clergy shows that support for same sex marriages increased from about one third up to nearly one half when religious assurances were included. And it is to those that legislators and gay activists are appealing with laws that clearly lay out such protection.

  • http://www.boxturtlebulletin.com Timothy Kincaid

    Eddy,

    Great story. A good illustration about the difference between churches that are focused on rules and a church that was focused on ministry.

  • Eddy

    Timothy–

    I’ve read your latest post several times along with the link ‘sticking point is concern over the conscience rights’ from Warren’s original post (that link is from the paragraph you cited) and I’m not sure what ‘may not be factually correct’. Can you help me out here? LOL. I think my brain may be melting from the heat and humidity.

  • http://www.boxturtlebulletin.com Timothy Kincaid

    Eddy

    Sorry that I wasn’t clear.

    The sticking point has nothing to do with merchants. That isn’t under debate. The sticking point has to do with churches and religious organizations and doesn’t seem to be much of a sticking point at all.

  • http://theformers.wordpress.com Debbie Thurman

    Thus, a state government does not violate the U.S. Constitution if it insists that all adoption agencies – even those operated by religious organizations – must be willing to place children with same-sex couples in order to receive state funding.

    Yes, a very good point. Not sure how many gov’t-funded agencies will decide to close their doors and not go it alone, but they certainly could take that option.

    As to this:

    In fact, from what I’ve heard, if the CA Supreme Court does not overturn Prop 8 on Tuesday, those who are crafting the language for the initiative for the voters to reverse Prop 8 will be including religious protections.

    It leaves me wondering how many states are going to jump on the referendum roller-coaster on the gay marriage issue. If California brings an anti-Prop. 8, measure before the voters, depending on the outcome of their Supreme Court’s ruling, that will make three (or is it four?) times the people there will have voted on the issue. How many times can they do that?

    As to your other question, I think religious protections are a legitimate concern. But there are two basic mindsets: the one that says no to gay marriage, period, while realizing that affirming basic rights for domestic partners is necessary (some will even say no to that) and the one that sees it as inevitable but wants to assure religions freedom and conscience are protected for objectors.

  • http://www.boxturtlebulletin.com Timothy Kincaid

    If California brings an anti-Prop. 8, measure before the voters, depending on the outcome of their Supreme Court’s ruling, that will make three (or is it four?) times the people there will have voted on the issue. How many times can they do that?

    I suppose they can keep going back and forth forever.

    However, trends seem to be showing that the population is becoming more supportive of same-sex marraige over time. So once it is relegalized in CA (in, I’m guessing either 2010 or 2012), I think it’s going to stay legal. I doubt that opponents are going to be able to raise the money to try and change it again if they don’t think they can win.

    As to your other question, I think religious protections are a legitimate concern. But there are two basic mindsets: the one that says no to gay marriage, period, while realizing that affirming basic rights for domestic partners is necessary (some will even say no to that) and the one that sees it as inevitable but wants to assure religions freedom and conscience are protected for objectors.

    I think you’re probably right.

    One thing that jumps out at me is this: those states that legalized marriage by statute are those that provided religious protections. Those that were changed by courts only answered the question before the court.

    I think at this point it is probably likely that more courts will find that marriage laws that exclude gay couples do so in violation of the “equal protections” clauses of their own state constitutions.

    It may well be to the interest of religious activists to make a compromise whereby they will support marriage laws that offer religious protections in states without constitutional amendments defining marriage. They may be able to broker a pretty good deal. Otherwise it may be just a matter of time before courts make that decision for them and give them nothing.

    I’m not sure how realistic that is, but it might be worth consideration on the part of conservatives and religious activists.


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