As California Goes…?

The same-sex marriage debate proved to be a politically divisive issue in the 2004 election, and once again the subject dominates the national political landscape during an election year. Yet one aspect of the gay marriage debate remains largely ignored: if and how same-sex marriage threatens religious liberties and the free exercise clause of the First amendment.

Lawyers convened last week at the Family Research Council to discuss the emerging conflict between same-sex marriage and religious liberty, and noticed an increase in the number of cases filed against religious institutions charged with violating state anti-discrimination laws on the basis of sexual orientation.

Speaking at the FRC event, Alliance Defense Fund (ADF) Chief Counsel Benjamin Bull described what kind of casework lawyers are currently dealing with in light of the California Supreme Court ruling to legalize same-sex marriage in California:

“Mixed with non-discrimination laws, what we’re seeing is churches now being forced or intimidated or threatened to perform same-sex marriages even though it violates the basic tenets of a church”

In one case—although it was filed prior to the California ruling—Bernstein and Pastor v. Ocean Grove Camp Meeting Association, a New Jersey Methodist Church refused to allow a lesbian couple to have their civil-union ceremony on the Church-owned pavilion due to religious reasons. The couple filed a complaint to the New Jersey civil rights agency in 2007 on the grounds of unlawful discrimination based on sexual orientation, won the case, and the tax-exempt status previously provided for the Church pavilion was revoked. The Church lost an estimated $20,000.

The outcome of Ocean Grove suggests a trend in which gay rights trump religious liberty in the courtroom, and Bull argues that this negatively affects churches statewide:

“Churches and clerks have a choice now: they can either perform same-sex vows in violation of their religious beliefs or they’re unemployed,” said Bull. “They’ve been told they’ll be fired if they don’t do this despite their very sincere religious beliefs which we always thought were protected by the free exercise clause of the First Amendment.”

Unemployment for refusing to perform same-sex marriages ceremonies may be an extreme and rare result of court orders, but a more common realistic disincentive employed by courts or the state that Bull mentions is the removal of tax-exemptions for religious institutions. “Christian organizations, if they refuse to recognize same-sex marriage, will stand to run afoul the IRS and may well lose tax exemptions in years to come unless we reverse what’s going on in California,” Bull predicted.

Under Section 501(c)(3) of the Internal Revenue Code, most churches that are state non-profits are granted tax-exempt status, so long as the church or organization does not violate fundamental “public policy.” The problem today is that the definition of “public policy” is changing, given that several states have legalized same-sex marriages.

Yet, this coming conflict permeates into much deeper aspects of life and law, and churches being slapped with lawsuits barely scratches the surface of the legal challenges ahead. As one panelist at FRC noted, when marriage law is changed in the US, not just one line in the code is changed, but a whole sea of legal codes become subject to modification. Thus, messy legal questions have recently arisen questioning whether religious organizations and individuals will be forced to adopt new state anti-discrimination laws regardless of conscience.

Examples include: will marriage counselors and psychologists lose their licenses if they refuse to provide services same-sex couples due to religious reasons? What about Christian doctors and physicians who refuse to perform in vitro fertilization to a gay woman, or insurance workers who do not want to provide same-sex couples spousal benefits? What about Christians who run bed-and-breakfasts, church-affiliated hostels, Christian community centers and baseball leagues? The list goes on and on.

Bull hypothesizes the next battle of this conflict will take place on the battleground of free speech. He fears states will adopt hate crime legislation in the near future that would “make it a crime to engage in politically-incorrect speech.”

He said, “In this case, politically-incorrect speech will be public criticism of people engaging in homosexual behavior or conduct, or criticizing homosexual marriages.” The Chief Counsel noted that Sweden and other European countries have passed hate crime legislation in this manner, and he worries that “Exactly the same thing is happening in Canada today and will be at our doorstep tomorrow.”

The gay rights movement as a whole disregards this pervasive conflict between same-sex marriage and religious liberty, and has adopted the attitude “just get over it,” according to Georgetown law professor Chai R. Feldblum. But Feldblum, who is a fervent gay rights activist herself, believes the gay rights movement should not be so quick to write off this conflict.

“To say ‘just get over it’, to me, demonstrates a complete lack of respect for what that person is feeling in terms of their sense that they’re facilitating sin,” said Feldblum. “You do not say to someone who feels that they’re facilitating sin ‘get over it.’”

Instead of accepting the “just get over it” mantra, Feldblum advocates a new dialogue: “How do we figure it out so that people who are gay who are finally getting their liberty recognized continue to have that liberty recognized, but not at the cost of overly crushing the liberty of religious people?”

Thus she does not want to reverse the recent California Supreme Court decision.

“The answer is not let’s roll back California,” said Feldblum. “If you also want to have the conversation about religious liberty, it’s gotta be that you recognize there’s some liberty for gay people.”

She elaborated, “We have similar liberty interests going on here, and gay people should understand religious people, and religious people should understand gay people more than they do now.”

Emily Miller is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.