‘Gay marriage’ legalization could be costly for religious liberty, legal experts say

By Tom Strode
Jul 16, 2008

Same-sex unions and religious liberty are destined to collide in this country in ways that could prove costly for the free exercise of religion, legal experts said in a Washington panel discussion.

The event, convened by the Washington-based Family Research Council, brought together law professors and legal advocates to discuss the impact on religious expression of the California Supreme Court’s May decision in support of “gay marriage.”

Benjamin Bull, chief counsel for the Alliance Defense Fund, said the conflict is inevitable, although the extent of the damage is yet to be determined.

“I do think … there is one thing that we can agree on, and that is that this whole attempted institution of same-sex marriage is on a collision course with traditional Christian views and values in virtually every institution that one can think of,” Bull said at the close of the 90-minute discussion. “And I can’t tell you whether or not it’s going to be a nuclear bomb-type collision or just a train wreck, but it’s coming.”

Kevin Hasson, president of Becket Fund for Religious Liberty, told the overflow audience his organization convened a diverse group of legal scholars for a discussion on the subject, a discussion that produced a soon-to-be-released book. “[T]he alarming thing is that all these scholars across the board said, ‘This will be very expensive in terms of religious liberty,’” Hasson said.

A 1990 opinion by the U.S. Supreme Court suggests the First Amendment’s protection of the free exercise of religion will not safeguard the rights of Christians and others who oppose same-sex unions, said Teresa Collett, a professor at the University of St. Thomas (Minn.) School of Law.

In Smith v. Oregon, the high court “said that when there are generally applicable, neutral laws that free exercise does not require an exemption,” Collett explained. “As long as those who are engaged in demanding recognition of same-sex unions do not exempt anyone, free-exercise claims will not be exempted either…. t doesn’t appear that the free-exercise clause will protect us.”

The loss of tax exemptions could be one of the ways religious organizations are impacted by the legalization of “same-sex marriage,” said Nathan Diament, director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America. “It is quite possible that it is only a matter of time ‘til every institution that chooses under its First Amendment beliefs to act in ways that manifest its objections to same-sex relationships … could have their tax-exempt status removed,” he said.

Diament and Chai Feldblum, a Georgetown University Law Center professor and a leading advocate for “gay rights,” both said it might be possible for “same-sex marriage” and religious freedom to coexist. “From my perspective, they can coexist if one or another is not, you know, taking the ‘my way or the highway’ kind of approach,” Diament said.

“A lot of it depends on whether we recognize not only in our courts but in our society that the First Amendment talks about the free exercise of religion, not merely freedom of conscience,” Diament told the audience. “It’s pretty clear that, in the United States, the First Amendment … will continue to protect everyone’s freedom to believe as they wish to believe. The question is: Will they continue to be able to act in ways that are consistent with those beliefs or will the law, in one way or another, interfere with those actions?”

Diament and other panelists cited a number of scenarios in which Americans’ religious rights might be infringed on when they clash with legal recognition of “homosexual marriage.” They questioned if accommodations or exemptions would be permitted for religious adherents or institutions in the following situations, among others:

  • County clerks who oppose issuing marriage licenses to same-sex couples.
  • Employees who disapprove of diversity training programs that endorse “gay marriage.”
  • Insurance company workers who do not want to sell policies or process claims for homosexual couples’ partner benefits.
  • Owners of small hotels and bed-and-breakfast inns who refuse to serve same-sex couples.
  • Lawyers who decline to provide estate planning for homosexual couples.
  • Psychologists and psychiatrists who refuse to counsel same-sex couples.
  • Doctors who will not provide some services, such as in vitro fertilization (IVF), for gay couples.
  • Religious colleges that will not open married student housing to same-sex couples.
  • Religious institutions that refuse requests from homosexual couples to hold wedding receptions in their buildings
  • Christian bookstores and other parachurch organizations that decline spousal benefits for “gay marriage” partners.

Legalizing “same-sex marriage” will have a far-ranging impact, Hasson said. “The upshot is when you change marriage, whether it be doing it judicially or legislatively, you don’t just change one little line in the [legal] code. You change about fifteen hundred lines in the code,” he said. “All sorts of things that are available to married couples or not available to non-married couples suddenly change along with the definition of marriage changing.”

There are some expressions of faith, such a preaching against homosexuality or “gay marriage,” that would not appear to be threatened, Diament and Feldblum said. “I don’t think it’s likely that the First Amendment or even the most radical courts will allow for a priest or rabbi to be prosecuted for preaching his or her faith tenets,” Diament said.

She is “not the norm in the gay rights movement on this issue,” Feldblum said, in that she is seeking to accommodate religious liberty while advancing homosexual rights. Feldblum acknowledged there is a “very strong core” in the homosexual rights movement that argues there should not be exceptions for those who oppose “same-sex marriage” on religious grounds.

Lawyers for the ACLU and Lambda Legal, a leading advocate for “gay rights,” argued recently before the California Supreme Court a doctor who refused IVF treatment to a lesbian should have “no opt-out for a religious exemption,” Bull said. “The choice is: Stop practicing medicine or violate your religious beliefs. And that’s the only option presented to the physicians by the other side.”

One of the problems, Bull said, is “what radical, homosexual activists will do with the new institution of same-sex marriage in using it as a battering ram across America to blast open new areas that ultimately will diminish, that will shrink the rights of Christians to express their faith in their lives and how they live, their free exercise of their religion. In the end, the logical extension is that our faith will only be a personalized, individualized faith that you can think about but you can’t even talk about.”

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