Does Same-Sex Marriage Threaten Religious Freedom?

 

(For an update about the Supreme Court decisions and 2013 legislation, see this new post)

 

One peculiarity of the marriage equality debate is the fact that the most vocal opponents of laws legalizing same-sex marriage are the people who are arguably the least affected by them. It is easy to understand why some people favor marriage equality – people in same-sex relationships, and their friends and families who support them, have a fairly tangible stake in the outcome. It’s harder to identify what is at stake personally for marriage equality opponents, so their arguments are usually made on behalf of society as a whole. Their main arguments fit into the following categories:

  • Same-sex marriage “de-values” traditional marriage;
  • God says he doesn’t like it;
  • Slippery slope to other non-traditional marriages (i.e., to animals, polygamy);
  • It threatens the religious freedom of clergy members.

The first three of these arguments hardly merit discussion—not because they aren’t contentious, but because debate is practically futile. The first two are wholly based on personal values and belief systems that are unlikely to change based on rational arguments, and slippery slope arguments are logically fallacious on their face. Even if these arguments were valid, it is difficult to see how the advocates of these arguments are affected – if your god doesn’t like gay marriages, you won’t get one; and if you don’t like the idea of polygamy, you won’t take multiple spouses.

The potential threat to religious freedom, however, is at least worth examining because it could directly impact people other than those entering same-sex unions. The supposed threat here is that laws allowing same-sex marriage will require religious officials to solemnize marriages to which they object based on religious doctrine, require churches to make facilities equally available for same-sex marriage ceremonies, or at the least expose them to civil lawsuits for discriminating against same-sex marriages.[i] There is something personally at stake for religious officials and clergy in this case. Even most supporters of same-sex marriage would agree that this would be a significant transgression of First Amendment religious freedom as well as bad public policy. However, as one examines the various laws allowing same-sex marriage or other unions, this seems to be a threat in only theory and not in practice.

States Recognizing Same-Sex Relationships

Full civil marriage rights are currently afforded to same-sex couples by six states – Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont – as well as the District of Columbia. Two more states, Washington and Maryland, have passed legislation to allow same-sex marriage, but face the possibility of being overturned at the polls this November. And of course there’s California, where stays in the Prop. 8 appeals process has left marriage equality in limbo.

In addition, there are ten states[ii] that do not offer same-sex “marriage” but allow same-sex couples to enter civil unions or domestic partnerships. These range from civil unions that are legally equivalent to marriage and even require a ceremony (such as in Delaware) to domestic partnerships that confer a more limited set of rights and obligations than marriage (and often stricter requirements, such as proof of cohabitation for a specified time period) and involve no ceremony, just filing registration paperwork with the county clerk.

Religious Freedom Clauses

Of the nineteen aforementioned jurisdictions offering (or about to offer) same-sex couple recognition, fourteen of them have statutes explicitly exempting religious officials from the obligation to offer marriage solemnization to same-sex couples. Many, such as Washington’s, not only exempt clergy from performing ceremonies, but also allow religious organizations to refuse any sort of accommodations, facilities, privileges, or goods relating to a same-sex marriage, and provide immunity from any civil action relating to such a refusal.

The five states that recognize same-sex couples but do not have such statutory religious exemptions are California, Iowa, Maine, Massachusetts, and Wisconsin. However, there is still very little danger that religious freedom would be infringed in any of these states.

Wisconsin’s and Maine’s domestic partnership laws are explicitly intended to be much weaker than marriage. The first section of the Wisconsin law provides:  “the legal status of domestic partnership as established in this chapter is not substantially similar to that of marriage. Nothing in this chapter shall be construed as inconsistent with or a violation of article XIII, section 13, of the Wisconsin Constitution” (which limits marriage to one man and one woman and even prohibits the recognition of any status “substantially similar to marriage”). Maine’s domestic partnership status primarily affects issues that arise after the death of one partner, such as inheritance and the right to make decisions regarding the deceased’s remains. Maine’s Dep’t. of Health and Human Services, which administers the partner registry, provides an explicit warning that domestic partnership is not a marriage on the registry’s instruction form. In both states, a domestic partnership can be formed just by filling out a short form and mailing it to a state agency with a small fee. Neither state requires any type of ceremony for their domestic partnerships, nor do they not appear to anticipate such ceremonies. If domestic partnership ceremonies do not exist in practice, there is no need to exempt religions from performing them.

In California, Iowa, and Massachusetts, same-sex marriage was legalized by their state supreme courts rather than through legislation (although California is on hold). Both California and Iowa still have statutes on the books that prohibit recognition of same-sex marriages, so a religious exemption would not make much sense in context of their marriage laws. Massachusetts is the only state that has updated its statutory law to allow same-sex marriage without adding a religious exemption clause. Yet in all three of these states, the courts have provided a religious exemption via judicial case law. California’s 2006 opinion in In re Marriages provides: “no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.” Iowa’s Supreme Court observed: “We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman.” And although Massachusetts’ Supreme Court relegates this clarification to a footnote, it nonetheless notes: “Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage.”

States Considering New Expanding Same-Sex Recognition

If religious organizations and clergy are safe in the states that currently recognize same-sex unions, what about those considering new marriage laws? There has been a small flurry of bills in states that already have civil unions or same-sex marriage that seek to re-affirm religious freedom, but none of these are ground-breaking and are mostly duplicative of current law. Being an election year, most state legislatures are deferring marriage equality questions to ballot initiatives. However, a few states have active bills considering the issue, all of which include religious freedom clauses.

  • Minnesota – SF1427 and HF1710would grant full marriage rights to same-sex couples; contains a religious freedom provision very interestingly framed as an argument for allowing same-sex marriages: “The state should not interfere with the religious beliefs of its people. Just as a church or religious denomination that objects to same-sex marriage has the right to refuse to solemnize those marriages, a church or religious denomination that believes in the value of same-sex marriage should have the right to solemnize those marriages.”
    • Note – Minnesota voters will decide on a constitutional amendment banning same-sex marriage in November 2012
  • Illinois — HB5170 would turn the state’s existing civil union law into full marriage; contains a religious freedom clause.
  • West Virginia — HB4569 would create “separate but equal” civil unions; contains a broad religious freedom clause that extends to a religious institution refusing to “recognize a civil union as valid,” and provides immunity from civil action.

 

 

[i] There is another component of the religious freedom argument offered by some, suggesting that if we allow gay marriage now, it will become culturally accepted by future generations, and they will look at our generation as bigots in retrospect, much as we now look at Jim Crow laws or school segregation. This argument fails both to grasp its own irony and to understand the concept of freedom—somehow, this includes a lack of negative judgments about one’s beliefs by other individuals in the future.

[ii] California, Delaware, Hawai’i, Illinois, Nevada, New Jersey, Oregon, Rhode Island, and Wisconsin.

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42 WordPress Comments to Does Same-Sex Marriage Threaten Religious Freedom?

Ericka says: January 7, 2013 at 7:17 pm

 When we redefine what marriage is then we make the family structure arbitrary. In doing this we will, as has been already, confuse the nurturing process. Those who are homosexual have to ultimately be supplied (so to speak) by heterosexuals [procreation] thus making it that heterosexuals have no dependency on homosexuals for their existence but homosexuals completely rely on (as do the rest of us) HETEROSEXUALS to keep the population going. With this in mind, it is reckless to toy with the societal paradigm concerning what a family is and what makes a marriage thus so. Homosexuality is a subculture fighting to be regarded as normal. The fact that NO acting homosexual can procreate with their participating partner says that these unions are Anomalies and not the way things should be according to the natural course and order of things. So far the imposition of this subculture has caused school children to question their particular sexuality who would otherwise not explore as deep on the matter neither would as vigorously openly express these impulses had it not been for the proliferation in media the campaign for the normalization of homosexuality. This is clearly an attack on traditional marriage and the traditional family. Try reading “Land of Diminished Distinctions” via Amazon Kindle Store.

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Logicmcdaniel says: February 18, 2013 at 10:19 am

Homosexuality is something that occurs naturally. Also, someone’s sexual orientation is not a ‘subculture.’ Reproduction is not the only reason why people on this planet have sex. Some people, such as myself (a straight woman) do not want children, and engage in sexual activity purely because it is a good thing to express love in such an intimate way. The ‘natural order,’ which I assume you read somewhere in a religious text, may not be the same natural order that many scientists, forward-thinkers, or homosexuals would agree with. What we don’t know, we fear. Make some gay friends and please stop discriminating against those who your God made perfect in His eyes.

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You'reWrongMcdaniel says: March 20, 2013 at 1:20 pm

Evolution disagrees with you. The scientist, forward-thinkers, and homosexuals you refer to not only go against the natural order of religion, but also the natural order of science.

Luke James says: May 18, 2013 at 6:24 pm

There is no such thing as the natural order of religion = religion is a man made thing and as such has no natural order , only the order given it by it’s makers = iron age men . And as for the natural order of science = everything in the world is by definition natural = i.e. part of the natural world as seen in hundreds in not thousands of animals and to give you just one example = in New Zealand there is a nationally famous albertross homosexual male couple who raise the chicks of those birds that do not return from the hunt for fish over the southern seas , this homo couple are stars in N.Z, were every year reporters gather to observe them . So explain it to me how homos are unnatural if it occures so often in the animal world as well as in the human world ? You anti homos have no leg to stand on .

david says: September 11, 2015 at 1:02 pm

not exactly these albatroses do not have sex.just the inteligence and compasion to bring up and raise chicks which have lost theyre parents.and cases of homosexulality in nature are not abundant. at all.if man made religion who made man??

Kafir istani says: September 14, 2015 at 4:39 pm

Of cause albertross sex is so diferent from human sex as to seem to be not sex at all , but same sex albertross couples do in fact go though the motions of trying to make a chick .Homosexuality is all ways only ever a minority option as Mother Nature designed it as a back up not as a replacement for heterosexuality . Why do humans need to be made by some thing /one ? Why can they not just have happened ( evolved ) over time ? And who made god ? If you say god needs know maker then why does any thing else need a maker ?

Robespierre0753 says: October 13, 2014 at 9:08 pm

The “natural order of religion” has always been persecution, fear, violence and a total contempt for knowledge and intellectual creativity. Secularism is always best for nations. Europe and Asia have found this truth, why can’t we? Christianity is steadily declining in poll after poll. The young find more meaning in the free and honest pursuit of their own spirituality. Organized religion is turning most people off. The phrase “we are in the post-Christian age” has now become common place. The amount of incredible scientific knowledge available now has discredited religion. Why is the religious right in such a panic? Why are they screaming vicious and non-sensical invectives? They know they are losing and don’t know what to do. Angry old white men usually die off and are not replaced.

david says: September 11, 2015 at 12:57 pm

it is not natural for a penis to enter the anus miss.anal sex is not natural you dont need to be a scientist to understand that.this is not about science at all.you dont need religious text to understand that.

alicia says: April 10, 2013 at 12:56 am

first off, family is family meaning, in my opinion, people who love you no matter what, people you can depend on no matter what, so for you to imply that same sex marriage would change the meaning of “what a family is” is very manipulative. first of all, if you are a woman, you would know that “traditional marriage” isnt so traditional anymore seeing as you couldve been raped by your husband if you didnt want to have sex and everything wouldve been okay because well, hes a man and youre a woman, you were considered your husbands property, and you could not own your own property. all of this because youre just a meek and docile woman, or at least you should be. Another big thing was the legalization of divorce. it was literally til death do you part. But becuase of changing times, over time all these things, the traditional marriage you know, “what makes a marriage” has changed almost entirely and aligned itself to the ways of society. back then it wasnt considered “normal” or “the natural way of things” when women wanted more rights. However, because these people, gay people, who just want to be married like every body else wants to get married its a threat to the ever changing “traditional” marriage. PAAAAAAAAALLLLLLEAAASE! People just want to be superior, make things an “us” and a “them”. but if you wete really living your own life, why would the them” be a threat to you. you can still believe in what you want to believe in, but when it comes to other people trying to live their life people have to step in and red flag it just because its different. just stfu, and live your life and they will live theirs, happily married, if you get over yourself and the lies society has placed in your head about “traditional marriage”

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Luke James says: May 18, 2013 at 6:04 pm

When marriage was redefined to allow opposite race couples to wed did this make the family structure arbitrary ? No it did not , just as it will not with same sex marriage , Just because some thing is a minority does not make it any less normal than the majority + homos do not need hetros to reproduce = male and female homo couples are just as able to reproduce working in co-operation as are any other humans not to mention artificial tech .The campaign to renormalize homosexuality is unstopable as more and more people come to learn that they have known homos all there lives and that they are just the same children , friends , brothers , sisters and workmates that they all ways were even when bigotry forced them to hide, Using iron age mythologies (RELIGION) to hide hate can never stand up against people we know and there basic human rights and for this reason the anti homos are a dieing breed .Have those who view homos as unnatural ever stopped to think that homosexuals are part of natures birth control processes and are there fore perfectly natural in this world , after all we all know that there are far to many humans on this planet as it is , but no these ideas are way past the small minds of bigots who seek to de-humanize homosexuals .

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WhyAreWeVotingOnWhoGetsRights? says: February 11, 2015 at 7:17 am

You are wrong actually, while cis gender homosexuals cant reproduce, you seem for exclude those transgender homosexual people who for whatever reason decide not to have the sex change surgery. Regardless, why does marriage have to equal a family? It doesn’t, I know plenty heterosexual people who have been married for many years who don’t want to have children. So with your argument I suppose you also think that infertile people, elderly people also should not have rights to marriage since they can also not produce a child. Homosexuality is common in many other species so saying it is unnatural is just wrong due to most likely ignorance to actually look into the scientific aspect of things. “The Bible said Adam and Eve not Adam and Steve.” Well its HOMOsapiens not heterosapien. You must also forget that God says to love your neighbor regardless, God doesn’t hate anyone, that isn’t what he is about. Lastly, why are we voting on which humans get rights and which ones dont?

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DestryDanger says: June 29, 2015 at 9:37 am

Kill yourself.

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Ericka says: January 20, 2016 at 4:00 pm

Interesting how liberals are so much about humanity until you oppose their views and then they become as vicious as they blame others for being. It’s like “let me go and do what I want or I HATE YOU”. #Juvenile

Ericka says: April 27, 2016 at 2:59 pm

I have yet to meet a LGBT proponent who argues their position peaceably…but yet they are constantly quoting the Bible as it pertains to what they think they know about “JUDGING”. You are truly a wicked and evil brood (“KILL YOURSELF”) forcing your ideas through media, schools and laws yet your perversion has not proven to heal the sick or raise the dead. I feel sorry for your souls [Romans 1:21]

dogsong says: April 21, 2016 at 7:19 am

If you say marriage is solely for procreation then infertile couples and couples who have no plans to have children shouldnt be allowed to get married right? Also, if a cis female and a trans female get married, that is a gay couple that can reproduce.

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Ericka says: April 27, 2016 at 2:52 pm

Infertility is a DEFECT and so then does not determine the original reason for the family unit. The family is society’s incubator. Whatever comes out of a family becomes our society. The “L”, “G”, “B” and “T” subcultures have all sought to adopt children as to chase a sense of being a “NORMAL” family. This is a perversion even as it pertains to modern science which states emphatically that a child most benefits from the input of both parental genders and therefore is in the healthiest developmental state when being raised by both father and mother. There are somethings a man just cannot offer a child in development as the same is the case that women are limited in the impact they can make in a developing child’s life, though bearing limitations both are vital players in the child’s rearing.

Everything we do in life is for the security of the next generation. In the name of “do whatever you feel” we are teaching a whole generation to subtly disregard having a sense of SOURCE by placing representatives before them as “parents” who could not have possibly produced the life they claim to.

This will play a significant role (and has) in the proliferation of narcissism and apathy to human life (neighborly regard) in the future as we continue to grossly promote this idea of being absorbed only with what people want for themselves caring not how it impacts others (Bruce Jenner abandoning his role as a father [and grandfather for the future] to chase his passion to be a woman). Gender is not arbitrary nor is it immaterial to the order of society, order and development in moral excellence.

We are applauding people running from the reality of who they obviously are and encouraging them to sequester and cause their imaginative selves to become incarnate through surgeries, hormones and behavioral augmentations; this we call BRAVE when in fact it is no less cowardly than those who hide behind drug abuse instead of facing life without artificial means!

ARTIFICIAL is the new REAL! Marriage is the Creator’s model for the family to develop within and this same sex culture is the result of a social mutation that has become emboldened with constant back and forth in the decline of what is deemed Right from Wrong.

This is simply DEVIANT BEHAVIOR Lobbying for NORMAL Status!!!!
#LandofDiminishedDistinctions

dogsong says: May 6, 2016 at 7:31 am

how is gender important to society? and gender isnt a choice, youre right. which is WHY trans people feel the way they do, because they were assigned the WRONG GENDER. im a trans girl, do you know how much i wish i could feel like a boy? do you understand how much i hated myself for years, telling myself i was just lying? i cant help how i feel! youre going to tell me im lying about my feelings ive tried to repress for years?

Ericka says: May 7, 2016 at 2:55 pm

You’re dealing with struggles and impulses, this doesn’t justify legitimizing the impulse. That would be like a psychopath who can be BORN with the trait thinking that psychopathic should be acceptable because the impulse is real!!!! GO FIGURE

Killer63 says: March 29, 2013 at 10:13 pm

Congress shall make no affecting the establishment of religion nor prohibiting the exercise thereof. The basic tenet of marriage is laid down in the Bible as being between a man and a woman. Those who believe in the Bible are exercising their free choice of religion. Therefore, if “marriage” is made legal between two people other than a man and a woman, it is unconstituitonal, as that law will prohibit the free exercise of religion and those who believe in a man and woman marriage. That makes only civil unions possibly legal, NOT marriage.

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Derek Smith says: April 5, 2013 at 2:44 pm

That is a compelling argument against a ban on opposite-sex marriage. Luckily, nobody is trying to do that.

The free exercise of religion allows you to make personal decisions in accordance with your religious beliefs; it does not allow you to force others to make their own personal decisions based on your specific beliefs. Does the failure to impose Sharia law in the U.S. infringe the religious freedom of American Muslims?

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Luke James says: May 18, 2013 at 6:46 pm

Marriage existed many thousands of years before men in iron age Judea invented the bible with bit’s taken from Zoroasterian , Cannanite , Egyptian, Gnostic and Greek religion and culture .The endless claims by Christians that they and there copied religion are the basis of all truth are to be laughed at , this religion is no more than a fake with bits taken from here there and every were .

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god says: June 29, 2015 at 9:22 am

…and those that don’t believe it are being discriminated by “religion”.. and that’s unconstitutional.

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VAL SALVO says: April 7, 2013 at 11:13 am

homosexuality actually occurs in nature, many animals such as dragonflies, dogs, cats, orca whales, manatees, emus, brown bears, penguins, chimpanzees, lions, horses, etc. have all displayed sexual behavior with the same sex. Weather we like to admit it or not, humans are animals too… if your against same sex marriage, you should ask yourself “who created all living creatures on the 6th day? your response would be ‘oh, that right, god did!” and what did god to but create a plan for each living thing before bringing life on earth… what type of person who believes they’re going to heaven can say that homosexuality is an abomination when your utterly insulting your god for creating life as he intended it along with a large percentage of human population and species on earth. As a solution to this whole same sex issue, i suggest the creation of a new religion The flying spaghetti Monster, or pastafarianism can be considered a real religion why can’t those who love others of the same sex establish a religion that can accept gay marriage.

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VAL SALVO says: April 7, 2013 at 11:17 am

homosexuality actually occurs in nature, many animals such as dragonflies, dogs, cats, orca whales, manatees, emus, brown bears, penguins, chimpanzees, lions, horses, etc. have all displayed sexual behavior with the same sex. Weather we like to admit it or not, humans are animals too… if your against same sex marriage, you should ask yourself “who created all living creatures on the 6th day? your response would be ‘oh, that right, god did!” and what did god to but create a plan for each living thing before bringing life on earth… what type of person who believes they’re going to heaven can say that homosexuality is an abomination when your utterly insulting your god for creating life as he intended it along with a large percentage of human population and species on earth. As a solution to this whole same sex issue, i suggest the creation of a new religion The flying spaghetti Monster, or pastafarianism can be considered a real religion why can’t those who love others of the same sex establish a religion that can accept gay marriage.

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tue value says: December 9, 2013 at 8:50 pm

No matter what you define, no matter what you thing is right. The creator stated is clear and truth. Open your eye America! You are allowing the devil to poluted you mind so that why things that is wrong and alway wrong become right to you. Look these very sins are causing all these problem in America and downgraded America power, values and everythings. These sin will only bring curses to America.

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ScrewPersonalValues says: January 30, 2014 at 6:39 pm

“The Devil”? This is based solely on your personal values. Religion is a man-made institution; for homosexuality this isn’t necessarily true. Similar to race, it is something that we as people cannot control.
The government isn’t affiliated with your beliefs, therefore, the opinions of your supposed “creator” are irrelevant. If you don’t agree with homosexuality then don’t marry someone of your own gender. Don’t impose your values (or the values of your so-called “creator”) on everyone else.

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god says: June 29, 2015 at 9:29 am

Creator? what religion are you talking about? The devil created religion to sucker you into being evil. Open your eyes!

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Exton says: January 11, 2014 at 8:52 pm

It should be called what it really is – a genderless, or sexless marriage. Same sex marriage makes about as much sense as saying a square circle. The Marxist left has gotten us here by the way they redefine everything, and out right lie about. Or as you should call it – propaganda. For all of man kinds history marriage has been about Man -Woman child family. It has been away to stabilize families and to perpetuate a society. The homosexual Mafia, started ignoring the child part and started saying it was about love. If you say this, they will use the straw man argument of “So you are saying that if a couple cannot have children, they should not get married?” Even though that is A reason for marriage, it is not a requirement. There are really only three rational reasons to disallow a marriage, 1. A close family member. 2. Someone too young, and 3. someone of the same sex. Love is not a requirement, nor is being fertile. There are arranged marriages, so it is not always about love. Being heterosexual is also not a requirement, and no state has ever had that as a requirement, so you cannot say its discriminatory.
If you look at the sad countries that have allowed genderless marriage, like Sweden, you see that all marriages decline and more children are born out of wedlock.If marriage is not a unique bond between a man and woman, than it is worthless. As a result there are more single parent households and a degragation of society. Just look at Detroit, and a society of single parents has brought to it.
The dirty little secret is that a society cannot exist and be viable without a stable family. It can get along just fine without homosexuals.

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god says: June 29, 2015 at 9:28 am

Marxist left? You are a brainless idiot. You fascist right is perfectly accurate though. Go get mad at the founders who were sure to keep the constitution godless.

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Agnus says: February 25, 2014 at 5:10 am

As long as people are not forced to marry them, whatever. People should not HAVE to marry them if it goes against their religion and by suing them you are infringing upon their right to religious freedom. You can believe what you want about homosexuality, but don’t force it on others by suing them or getting mad that they don’t think the same or indulge you. If people don’t mind marrying them, that’s whatever too then, but I hate seeing religious folk get the backlash for not wanting to contribute in any way to things that go against their religion.

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god says: June 29, 2015 at 9:18 am

The natural order of religion? hahaha.. here’s how it goes.. Federal laws trumps state laws. Depending on state laws that give people a license to discriminate is weak. That is simple and precise. Haters need those intentional discrimination state laws because your bible doesn’t have it.

PS: your god created gay people. Either it was his will or he’s far from perfect. Now tell me all your nonsense about free will. Man made global warming has facts, free will is getting crushed with facts to prove it nonsense.

Religion is so gay LOL

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Cedric Credle says: November 7, 2015 at 9:28 pm

Regarding religious freedom the target is the traditonal marriage between a man and a woman. They want to make it a relgious issues so that more ammo would be used by the phrase Separation of Church and State.Now the emphasis, of what that phrase really means; is the idea that the govenment should be the moral compass of the nation instead of the government itself. Freedom of religion to me has left a Pandora door,if you will to make everything relative of no absolutes.

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