After Gay Marriage, What About Religious Freedom?

charles-c-haynes Commentary

By Charles C. Haynes
First Amendment Center senior scholar

Is it all over but the shouting?

Proponents of gay marriage may have reason to think so after major victories in Iowa and Vermont this month. On April 3, a unanimous Iowa Supreme Court legalized gay marriage and four days later the Vermont Legislature overrode the governor’s veto to enact a bill allowing same-sex marriage.

Of course, four states (Massachusetts and Connecticut are the other two) is still a long way from 50. Culture-war shouting will continue unabated on many fronts: lawsuits, protests, ballot initiatives and state constitutional amendments.

But when same-sex couples line up to get married in America’s heartland starting later this month, gay-marriage advocates will have the political wind at their backs. Legislatures in New York, New Jersey, Maine and New Hampshire appear poised to legalize same-sex marriage this year.

Fueling this momentum is growing public support for some kind of legal recognition of same-sex relationships. In Iowa, for example, 26% of adults support gay marriage and another 28% favor civil unions, according to a survey from the University of Iowa. As growing numbers of voters view gay marriage as a civil rights issue, more legislators and judges will be emboldened to provide marriage benefits to same-sex couples.

And consider the demographics. The same University of Iowa poll found that nearly 59% of Iowans under 30 support gay marriage and fully three-fourths want some kind of formal recognition of same-sex partnerships. Nationwide almost half (46%) of young adults (18-34) now support same-sex marriage, up 9 points from 2006, according to Public Religion Research.

As gay marriage gains ground, the question of how legalizing same-sex marriage affects religious freedom becomes less theoretical and more urgent.

Proponents of gay marriage hail the Iowa court decision as a victory for religious liberty because it draws a clear distinction between civil and religious marriage. As Americans United for Separation of Church and State puts it, “civil law should reflect equal protection for all citizens and not be anchored in religious dogma.”

But the other side argues that the legalizing same-sex marriage will lead to persecution of Christians who criticize homosexuality. In a press release following the Iowa decision, the Traditional Values Coalition warned the ruling “will be used to force pastors to conduct same-sex ceremonies or face penalties.”

The Iowa justices themselves see no threat to religious freedom from gay marriage, stating that “a religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person … does not lose its meaning as a sacrament or other religious institution.”

Nevertheless, difficult questions remain. Although most legal experts agree that the First Amendment clearly prohibits the state from coercing religious leaders to perform same-sex marriages, they also agree that legal recognition of gay marriage will inevitably lead to clashes between same-sex couples and some religious businesses and social service agencies. (For a full discussion of these emerging conflicts, I highly recommend Same-Sex Marriage and Religious Liberty, published last year by The Becket Fund for Religious Liberty and Rowman & Littlefield Publishers.)

To what extent, if any, should the law protect the right of conscientious objectors to refuse service to gay couples? And how far may government go in requiring religious institutions to accommodate same-sex marriage?

Answering these questions will not be easy. But people on all sides of the debate have a vested interest in finding ways to ensure protection for religious liberty in the process of legalizing same-sex marriage. Religious people and institutions, of course, want to maintain their freedom to preach and practice their faith in places where gay marriage is legal.

And advocates of gay marriage want to win public support for their civil right to marry. According to a 2008 survey taken by Public Religion Research, when asked whether they would favor allowing gay couples to marry “if the law guaranteed that no church or congregation would be required to perform marriages for gay couples,” support for legalizing same-sex marriage jumped from 29% to 43%.

Gay marriage is here to stay. And religious objections to gay marriage are not likely to evaporate anytime soon. Our best option — the one that most serves the common good — is to work together to find the right balance between equality and religious freedom, two of our nation’s most cherished ideals.

Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected].