Religious Exemptions for Same-Sex Unions

JUST LAW AND RELIGION By Michael Kessler Miss California heroically pushes back a cultural Armageddon. I thought that would be … Continued

JUST LAW AND RELIGION

By Michael Kessler

Miss California heroically pushes back a cultural Armageddon.

I thought that would be the headline after the Miss USA pageant. In fact, the pageant was just one of several same-sex-related events this past month that must have made social conservatives think the apocalypse was hurtling towards them.

First, there was the Iowa Supreme court’s landmark ruling on April 3, which held that the state’s equal protection clause required the state to treat all citizens equally in applying for licenses to wed–both heterosexual and homosexual couples. The unanimous court said they were “firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective.”

By opening the clerk’s door to marriage license applications from same-sex couples, the Court claimed they do not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.”

Surely, though, the religious liberties of some will be impacted by this ruling, if their convictions teach them that marriage is for a man and woman and gays are pathologies of God’s intention for nature.

Then, in the past few weeks, a number of states–Connecticut and New Hampshire most recently–have legislatively secured the right of same sex couples to marry. More states are considering legislation. The legislative path, of course, undercuts the conservative culture warriors’ claim that a few robed elites are forcing this down the throats of a reluctant (or outraged) citizenry. Instead, these measures were passed by the suited elites in the state legislative chambers–surely more representative of the peoples’ will?

Notable in both of the Connecticut and New Hampshire legislation have been explicit protections for religious liberty. The scope of the exemptions varies, but they are intended to allow clergy and religious groups the opportunity to avoid participation in same-sex marriages without running afoul of anti-discrimination laws. Some proposals include extending the exemption to individuals, even those who are serving in public office, or offering a business service.

Connecticut’s bill, signed into law last week, was immediately amended to include an exemption for religious organizations such that they will “not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for [them]… is related to the solemnization of a marriage…and such solemnization or celebration is in violation of their religious beliefs and faith.” However, language that would have extended this exemption to individuals and business owners was not included.

Thus, Connecticut churches need not accommodate same-sex marriages, but florists and caterers may not have the same option.

Into this “moral chaos” as some want to describe it came the young Carrie Prejean, Miss California, who sent Miss USA pageant judge Perez Hilton into a frenzy of disdain with her response: “I think that I believe that a marriage should be between a man and a woman.”

If boldness of conviction was being scored, then Ms. Prejean would have won when she replied to Hilton’s question about whether all states should legalize same-sex marriage.

The religious right overnight embraced her as their young, fresh face. No offense to the youngish Ralph Reed, but she certainly has a new look that may garner more attention from the NASCAR men of the Republican Party than James Dobson or Pat Robertson ever did.

This past Sunday, she appeared at the Rock Church in Point Loma, Calif., and expressed no regrets: “I don’t take back what I said. No way I wasn’t going to stand up for what I believe in . . . This is how I was bought up to believe,” she told the congregation. “We have to be strong and true to our faith and our beliefs.”

Good for her, I guess. I’m torn in my response, since I cherish religious liberty and prize freedom of speech and expression. They are basic values that must not be compromised even if I disagree with the person’s position. If the KKK wants to march in Skokie, they have a right to peaceably assemble and state their religiously-inspired views, too. I don’t have to agree and can argue vigorously in favor or dissent.

But we also cannot tolerate limiting access to legal protection or enjoyment of rights because a traditional minority (or even a tyrannical majority) thinks that some group is acting against God’s will. Constitutionally, they have every right to participate on an equal footing in certain legal contracts just like everyone else. (And I agree with Doug Kmiec and others who argue that the state’s interest in marriage is about the legal union for the purposes of various financial and contractual relations–not some sacred endorsement. That’s the business of religion).

These religious exemptions are probably a good compromise position for the inevitable conflict between the basic moral goods of free exercise of religion and equal protection/access of the law. Persons like Miss Prejean who do not want to provide flowers or psalms at a gay wedding would be able to privately bow out. Gay couples could still seek the protections of legal union. Whether that should be called “marriage” I am not advocating for or against.

However, the arguments for religious exemptions do seem to encounter one hurdle that I have yet to see surmounted. There are significant parallels between the movement for denying same sex unions under law, and laws that promoted and perpetuated racial discrimination. Just like some churches of today who preach about God’s will and the abomination of gay marriage, so too did some churches of yesterday discern God’s intention for separating the races and keeping the “inferior races” at bay.

And it is an obvious problem if you watch the National Organization for Marriage‘s new ad campaign. The much-parodied spot is called “A Gathering Storm.” It has an earnest if gloomy tone, and its aesthetic, as Stephen Colbert described it, is “like watching the 700 Club and the Weather Channel at the same time.”

According to the ad, a “rainbow coalition . . . coming together in love” is concerned that they are being required to accept gay marriage in their workplace, schools, and their daily public life. They do not want to be forced to accept something against their religious convictions. “Keep your gay unions away from me and my kids” is the gist of the ad. My guess is NOM would rather not have gay marriage at all, rather than accept it with the provision for religious exemptions.

Watch the advertisement and substitute the words “racial integration” in for “gay marriage” or “same sex marriage.” This exposes the thorny issue for religious exemptions.

There are certainly some differences between judging people based on race, and judging people based on their sexual identity. However, in this instance, I am not convinced that those who call for religious exemptions from anti-discrimination laws have differentiated themselves from the parallels to racial discrimination. I would like to see advocates make that distinction more clear.

Miss Prejean has every right to her convictions–and I applaud her for stating them. Going further and denying other people access to enjoyment of their fundamental privileges and immunities of citizenship because of her convictions is inappropriate.

At the same time, those like Miss Prejean who do not want to participate in what they find repulsive because of their religious convictions should be able to enjoy the protection of that religious liberty.

We have a lot of compromising ahead of us in the coming years.

By Michael Kessler | 
May 1, 2009; 5:41 AM ET

 | Category: 

Just Law and Religion


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  • smrlilbit

    Where does it all end? Is it ok for a brother and sister to apply for a marriage license if they are both of age? What if a man wants several wives that are of age? This was ok in some cultures before. I don’t have the answer. DO you? What about the Muslim religion? They don’t believe in gays and yet they have young girls (age 5 to 10) marrying older men. Who is to pass judgement on anyone unless the God of Abraham is the one!

  • CCNL

    It is all about physics, biology and anatomy and the definitions derived from them for heterosexual and homosexual sex. Heterosexual sex = intercourse, copulation or coitusHomosexual sex- mutual masturbation or outercourseSexual unions approved by religions and governments should spell this out in licenses granted to said individuals.

  • beforegod

    C C N L:Ouch!

  • Farnaz1Mansouri1

    Surely, religious institutions may not act in conflict with the law and continue to receive nonprofit status as they continue to do.They are not to stick their icky fingers into the political process but they propaganidize in churches and mosqs every weekend. (Synogogue services are fairly patterned.)They have conscience clauses which allow them to decline to perform abortions because they don’t like them.Now, they can marry some folks, but not others.NO PROBLEM. Here’s what you do. Abolish conscience clauses. Don’t do the job, don’t get my money, honey. CHURCHES SYNAGOGUES, ETC., ARE OFFICIALLY OUT OF THE MARRIAGE BUSINESS. Period. Bye.Politicize, tell people how to vote, and no taxt exempt status for you.Best solution to the forgoing. END NONPROFIT STATUS FOR INSTITUTIONS OF ORGANIZED RELIGION.Separate church and state.

  • nunivek

    If we are going to remove this issue from morality we better have a very clear rationale for how we are defining and granting or denying services and privileges to the public. These contractual unions should have nothing to do with legitimating loving relationship or supporting marriage, if they are truly unions that the government should sanction they should have legitimate reasons for the government to be involved at all. What benefit do we get to our society by having the government define marriage at all? And if we are not talking about marriage, what rationale does the government employ for denying these relationships to close relatives or plural groups? Furthermore, why are the unions considered to be indefinite? If it is about visitation rights and insurance etc. none of these rights have to be intrinsically tied to a couple. You could feasibly grant these rights to all kinds of individuals in relationship to you.

  • CCNL

    As per Farnaz and her aliases: “Best solution to the forgoing. END NONPROFIT STATUS FOR INSTITUTIONS OF ORGANIZED RELIGION”.Hmmm, does that mean that the International Baha’i (cult/not an organized religion)Fund, administered by the Universal House of Baha’i Justice is profit company taxed by the citizens of the USA and said fund member are not pleased??????

  • kphil1

    I truly wish that the supreme court would visit this issue sooner rather than later. Then we could see how silly the “racial rights” argument is in light of recognition that homosexuality is a behavior, and not an attribute, as so many from the gay community would have you believe.

  • lepidopteryx

    I see no problem with exempting churches from having to perform same sex weddings. There are already numerous exceptions for churches that are not written into law.It is perfectly legal in all 50 states for a Catholic to marry a Protestant. It is also perfectly legal for a Catholic priest to refuse to performthe wedding.It is perfectly legal in all 50 states for divorced people to remarry. It is also perfectly legal for Catholic priests to refuse to perform weddings if either party is divorced.It is perfectly legal in all 50 states for Jews to marry Gentiles. It is also perfectly legal for rabbis to refuse to perform weddings between Jews and Gentiles.It is perfectly legal for any memeber of the clergy to refuse to perform any wedding for any reason. Clergy are not even legally obligated to perform weddings between members of their own congregations. If same-sex couples want a church wedding, there are Unitarian clergy all over the country who will gladly perform the ceremony. My Unitarian minister has been performing same-sex wedding ceremonies for almost two decades now, even though same-sex marriage is not legally recognized in my state.

  • CCNL

    Minor corrections:As per Farnaz and her aliases:Hmmm, does that mean that the International Baha’i (cult/not an organized religion)Fund, administered by the Universal House of Baha’i Justice is a profit company taxed by the citizens of the USA and said fund members are not pleased??????

  • Farnaz1Mansouri1

    Best solution for this and all church/state issues. End nonprofit status for institutions of organized religion.End conscience clauses.Make marriage an entirely secular institution. Get churches out of the marriage business.If churches, etc., wish to have relgigious ceremonies for some before or after they are married by a Justice of the Peace, or the like, that would be the business of said churches, once they were out of the marriage business and no longer tax exempt.Get the churches out of the marriage business.Advise them that nonprofit status will end within a year so as to give them time to find alternative sources of revenue, if necessary.

  • Rmitch1

    —-Saddly, it doesn’t look like the Supream Court will step in and resolve this anytime soon. But, it should. Most Americans feel they are citizens of the USA, not some particular subdivision of it. As far as making certain compromises for religious liberty goes, I can live with anything any state governments can pass.

  • norriehoyt

    “Miss Prejean has every right to her convictions–and I applaud her for stating them.”I don’t. Like most Miss Anythings, she’s just plain dopey.Michael Kessler isn’t doing too well in the mental acuity field either. He’s confused Vermont with New Hampshire at the start of his post.It’s Vermont, not New Hampshire, that has legislatively established same-sex marriage this year.New Hampshire’s legislature is now debating the issue, but same-sex marriage isn’t likely to be enacted there in 2009.

  • nunivek

    Farnaz, you are actually contending something similar to what I suggest. Though I tend to lean towards the government being eliminated from the marriage business altogether. Your not going to get Churches to stop offering marriages, but I tend to agree that there is no benefit from them acting as agents of the government as the currently are. In fact there are even churches marriage GLBTQ couples already in every state without the consent of the government.

  • nunivek

    Contractual agreement sounds great to me first of all, but why is there just one and why is it a sort of omnibus agreement? Secondly though we already protect children without marriage from a government standpoint, and as for taxation, exactly what reason does that tax discrimination exist for? Is there some unique benefit that society gets from the government giving tax breaks to “married” couples? What makes them uniquely different from other couples, groups, or individuals that merits this treatment under the law? Isn’t it feasible in fact that some of the rights and responsibilities that we lump altogether currently for a spouse may be better or at least more preferably dispersed amongst a variety of people of your choice?

  • Farnaz1Mansouri1

    Nunivek:”Isn’t it feasible in fact that some of the rights and responsibilities that we lump altogether currently for a spouse may be better or at least more preferably dispersed amongst a variety of people of your choice?” Actually, I think that if one can demonstrate that another, not necessarily a child, is fully dependent on him/her, s/he can “claim” said person, e.g., an elderly parent.But you make a very interesting point, if I read you correctly. You are asking why income taxes are linked to marriage and childcare to the exclusion of other living arrangements and dependencies. Moreover, no one forces anyone to get married or have children–although the pressure is there, big time, in not-so-subtle ways.Also, it’s worth considering that if as a society, we stopped reproducing, we’d soon die out. Still, I think you’ve got a very, very good point. Why doesn’t the “law,” as it were, link taxes to all sorts of living arrangements, dependencies, etc.?

  • CCNL

    Again: as per Farnaz and her aliases (her newest = “nunivek?”):”Best solution to the forgoing. END NONPROFIT STATUS FOR INSTITUTIONS OF ORGANIZED RELIGION”.Hmmm, does that mean that the International Baha’i (cult/not an organized religion)Fund, administered by the Universal House of Baha’i Justice is a profit company taxed by the citizens of the USA and said fund members are not pleased??????

  • nunivek

    CCNL, no unlike Farnaz, I don’t actually think that religious institutions should lose their tax exempt status that seems to violate the notion of the separation of Church and State to me, and is discriminatory when the State offers these kinds of exemptions to all kinds of non-profit institutions.

  • Farnaz1Mansouri1

    Nunivek writes:….unlike Farnaz, I don’t actually think that religious institutions should lose their tax exempt status that seems to violate the notion of the separation of Church and State to me, and is discriminatory when the State offers these kinds of exemptions to all kinds of non-profit institutions. Further, I’d like to see exact figures, i.e., how much it costs us to exempt religious institutions vis a vis other kinds of entities, what we’re getting for our money, etc.

  • Farnaz1Mansouri1

    Nunivek:Posted too soon. Would like to know your thoughts.Farnaz

  • nunivek

    Farnaz, I think that the Separation of Church and State goes both ways. The State does not establish a religion and tax the public to fund religious institutions as they do in some European contexts, neither does it exert power over the inner workings of the Church by taxing its income. Thus the State and the Public are protected from the Church and the Church is protected from the State. If taxation is permitted it could actually be used as a means of shutting down and persecuting the Church, not to mention the fact that the funds are used for purposes that the Church may deem to be in direct conflict with its moral existence and purpose (such as war). And taxing the public to pay for the Churches themselves would also be prejudicial, dangerous, and damaging for the Churches. CCNL, I don’t appreciate being called a straw man, I think my own arguments stand legitimately if you disagree feel free to actually contribute rather than slander other posters.