State of Protest

I’d like to add a bit of perspective to the commentary I read the other day by Roger Severino, a lawyer with the Becket Fund for Religious Liberty. The article is divided into quote boxes, my comments follow.

Legalizing gay marriage will spark lawsuits against churches ¹

Apr 7, 2008 3:00 AM (1 day ago) by Roger Severino, The Examiner

WASHINGTON - After years of litigation and debate, the California and Connecticut supreme courts are about to decide the question of marriage. If, as some suspect, the courts redefine the institution to include same-sex couples, they will have entered a minefield of unintended consequences — especially with regard to religious liberty.

The experience of legalizing same-sex marriage in Massachusetts, and of civil unions elsewhere, cannot be ignored. It shows that, even with the best of intentions, legalizing same-sex marriage will seriously undermine the religious freedom citizens have enjoyed since the founding.

This hyperbole has become all too well known in arguments that appeal to tradition. This was the same argument used in the iconic Supreme Court case of Loving v. Virginia, where in the earlier trial, the trial judge stated:

“Almighty God created the races white, black, yellow, Malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”²

Apparently allowing races to mix in marriage would “seriously undermine the religious freedom citizens have enjoyed since the founding.”

Severino, continued:

Although the First Amendment protects dissenting houses of worship from being forced to perform same-sex wedding ceremonies against their will, that is not the end of the story — it is barely even the beginning.

Mr. Severino apparently ignores the fact that although there is an optional ceremonial and religious aspect to marriage, with regard to the state, it is a legal issue akin to a contract in the eyes of the state, covered by its laws, and that can be processed fully by a non-religious government entity such as a justice of the peace or someone else authorized to conduct a marriage. In other words, religious institutions are not required to perform marital ceremonies — these religious rituals are optional, based on the desires of the members of the respective churches.

Simply changing the definition of marriage opens the door to a flood of lawsuits against dissenting religious institutions based on state public accommodation and employment laws that prohibit marital status and sexual orientation discrimination.

Is what’s being asked for a simple change in definition of marriage, or is it a change in application of marriage? I think it’s the latter. The same way a black and white couple could live together as if married, prior to Loving v. Virginia, two men or two women could live together as if married. Loving allowed states to recognize the black and white couple as a union under law, afforded the same rights and privileges as other couples. Apply marriage more broadly and reject more tradition, and it would include same-gendered couples. As F.C. Decoste states, “Of course, if this be so — if the only arguments against same-sex marriage are sectarian — then opposing the legalization of same-sex marriage is invidious in a fashion no different from supporting anti-miscegenation laws: each is a fundamental assault on equality, and neither has any rhyme or reason beyond sectarian commitments which would foist one’s own diseased, personal morality on the whole of the polity.”³

Additionally, religious institutions that refuse to recognize a new state-imposed definition could be stripped of access to government programs, have their tax exemption denied and even lose the ability to solemnize civil marriages.

Here we embark on an interesting and, I’m sure, controversial issue — should religious institutions even have tax exemptions, or is that a violation of the First Amendment? And why should religious institutions be treated any differently than any other charitable organization that refuses to comply with government rules, and that ends up losing access to government programs? Is the adherence to religious tradition and homophobia important enough to religious institutions that the lesser of two evils is to reject government assistance?

We need only look at Massachusetts for a preview of what to expect. There, in 2004, justices of the peace who refused to solemnize same-sex unions due to religious objections were summarily fired.

And a doctor who refuses to perform a life-saving blood transfusion because it conflicts with his religious beliefs should be praised? If a person hired by a government entity has a personal problem performing an administrative task according to the rules and regulations of the government, then the person should not be an employee of the government.

It did not matter that other justices of the peace were available to do the job because, by Massachusetts law, same-sex unions were now entitled to equal treatment. A religious belief became a firing offense.

No, the belief did not become a firing offense. The manifestation of that belief by refusing to comply with a government mandate while being employed by that government became a firing offense.

It is but a small step for the state to impose this rationale on churches and other houses of worship and end legal recognition of religious marriage ceremonies that do not comply with the state’s expanded definition of marriage.

As has always been the case anyway. If a Church of Satan has a marriage ceremony, the government doesn’t have to recognize it if it doesn’t comply with state law. So, the rationale has always been imposed. Even a church recognized as an entity that can perform legal marriages doesn’t get a free pass if the person actually performing the marriage is not authorized to do so. Why should there be a special exemption for religion for anything violative of the law?

This is not the only example of what is to come. Massachusetts, like many other states, strictly regulates private adoption agencies through licensing. Historically, this has not posed any difficulties for religious institutions, but Massachusetts now demands that all licensed adoption agencies be willing to place children with legally married same-sex couples.

However, Catholic Charities, the largest private social service provider in the state, could not in good conscience place its orphan children into homosexual households. After a bitter struggle, Boston Catholic Charities was forced out of the adoption business because it refused to embrace the state’s new definition of marriage. The result was doubly tragic because both orphan children and religious liberty took the hit for this misguided attempt at equality.

It seems more like the orphan children took a hit because of Catholic homophobia and irrational adherence to tradition in not even considering the viability of a same-sex set of parents. Is it so important that the couple be man and woman that the next best option for Catholic Charities is to perpetuate the orphanhood of the children? Should the civil rights of couples be ignored for the sake of the homophobic?

Two more real-world examples illustrate the danger. In New Jersey, the city of Ocean Grove recently yanked a Methodist institution’s real estate tax exemption because it refused to perform civil unions in its outdoor wedding pavilion.

In Iowa, the Des Moines Human Rights Commission found the local YMCA in violation of public accommodation laws because it refused to extend “family membership” privileges to a lesbian couple that had entered a civil union in Vermont.

Based on the ruling, the city forced the YMCA to recognize gay and lesbian unions as “families” for membership purposes, or lose $102,000 in government support for the YMCA’s community programs. Equal provision of benefits to all couples was not enough — only the YMCA’s explicit adoption of the state’s new definition of family fulfilled the government’s requirements.

Again, governments are effectively giving taxpayer money to religious institutions in the form of exemptions because those institutions follow government regulation. When the institutions refuse to follow government regulation, the government stops the exemptions. Are the coffers so empty that churches cannot go private and run things the way they wish? Isn’t the Catholic church one of the most wealthy entities in the entire world? So wealthy that it could feasibly ignore the lack of tax exemption, and facilitate the finding of homes for orphans, or buy out the YMCA and privatize it?

This list barely mentions the avalanche of employment discrimination lawsuits religious institutions will face, if, for example, employees at religious institutions publicly enter same-sex unions in violation of the institution’s teachings and employment policies.

Likewise, religious colleges and universities would run afoul of housing discrimination laws if they were to offer housing benefits for husband-and-wife couples but decline to do so for married same-sex partners.

Yet again, government money (which is taxpayer money) for adhering to the law. Not adhering to the law results in no government money or enforcement of the law. If churches don’t like it, they can go private.

Are we better off as a community if religious charities are forced to close their doors because the state redefines what is and is not a marriage? Are we better off if, for example, the Salvation Army is forced to close because of employment lawsuits, or if Catholic adoption agencies are forced to shutter their offices? What would such a result say about tolerating diversity and respect for religious liberty?

Lawmakers and judges need to consider all the consequences, intended and unintended, before embarking on this path.

There are plenty of non-religious charities that would be happy to take on the tasks of former religious charities that are destroyed due to their own arrogance. Respecting religious liberty is not equivalent to allowing religious institutions to do whatever they want with taxpayer money without being accountable to the taxpayers or the government. As a society, we can respect or refuse to respect religions as beliefs, but that has nothing to do with accepting the behavior of religious institutions. However, the government, the entity that takes and redistributes our tax money, is held to a higher standard. Remember, Congress shall make no law respecting….

-Procrustes

1. http://www.examiner.com/a-1324540~Roger_Severino__Legalizing_gay_marriage_will_spark_lawsuits_against_churches.html [↩]
2. Loving v. Virginia, 388 U.S. 1 (1967) [↩]
3. The HalpernTransformation:
   Same-Sex Marriage, Civil Society, and the Limits of Liberal Law, F.C. Decoste, http://www.marriageinstitute.ca/images/decoste.pdf [↩]