When the Supreme Court struck down the Defense of Marriage Act in June, President Obama said: โHow religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decisionโwhich applies only to civil marriagesโchanges that.โ
That line was echoed by the media, with a typical comment coming from the Los Angeles Times editorial page: โGovernment entities in California must now recognize and extend equal rights to same-sex marriages, but that requirement does not extend to religions, their houses of worship or their ministers.โ
Reassuring words like those may help explain why many Americans support legal recognition for same-sex marriage even though the practice is contrary to their own religious beliefs. Some 97.6% of religious adherents in the U.S.โmore than half the populationโbelong to religious bodies that affirm the traditional definition of marriage, according to the Becket Fund for Religious Liberty.
For those Americans, tolerance isnโt turning out to be a two-way street. A couple that owns a bakery in Gresham, Ore., closed its shop earlier this month after the state launched an investigation into their religious objections to catering same-sex union celebrations.
The New Mexico Supreme Court ruled in August that Elane Photography violated the stateโs Human Rights Act by declining to photograph a lesbian commitment ceremony because doing so would present a religious conflict. A judge upholding a $6,637 fine against the small business owned by a Christian couple said being โcompelled by law to compromise the very religious beliefs that inspire their livesโ was โthe price of citizenship.โ
Members of the clergy who object to performing same-sex marriages are generally protected from such legal harassmentโa fact that advocates for gay marriage emphasized to give the public confidence that religious beliefs would not be trampled by legalization. In 2008, the California Supreme Court suggested that religious freedom would be unaffected by same-sex marriage because โno religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.โ
But the protection of the beliefs held by church officials and congregations is guaranteed by the First Amendment and a host of legal precedents. Whatโs at stake is personal religious liberty. โIndividuals really havenโt gotten much protection at all,โ says Robin Fretwell Wilson, a professor of the University of Illinois College of Law who lobbies legislatures to protect individual religious liberty when revising marriage laws.
Itโs not just religious-minded business owners who need to worry. County recorders, magistrates and judges in Iowa as well as justices of the peace in Massachusetts and town clerks in New York have been told that refusing to perform services for same-sex couples will result in criminal prosecutions for misdemeanors or other sanctions. Faced with choosing between their jobs and their religious beliefs, many have resigned, including a dozen Massachusetts justices of the peace.
โWherever government is giving you access to something, licensing the power to perform certain acts, government can abuse that position to promote a particular point of view,โ says Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty.
Long before the lawsuits, fines and penalties started piling up, many legal scholars recognized that gay rights and individual religious liberty were on a collision course. In 2006, Chai Feldblum, a legal scholar and gay-rights activist later appointed by President Obama to the Equal Employment Opportunity Commission, acknowledged the conflict: โThere can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because thatโs the only way that the dignity of gay people can be affirmed in any realistic manner.โ
It is only now becoming clear to many Americans what sort of compromise has been imposed on them.
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