Gay marriage looms as 'battle of our times'
As Senate prepares to argue marriage amendment, room for compromise between religious freedom and equal rights seems thin.
The battle over same-sex marriage is shaping into something more than deep societal tradition vs. civil rights. It is becoming a conflict of equality vs. religious liberty.Skip to next paragraph
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As gays make gains, some religious institutions are coming under pressure. For instance:
• A Christian high school in Wildomar, Calif., is being sued for expelling two students on suspicion of being lesbian. The parents' suit claims that the school is a business under state civil rights law, which prohibits discrimination based on sexual orientation.
• Catholic Charities in Boston, where same-sex marriage is legal, recently shuttered its adoption agency rather than serve gay and lesbian couples in conflict with church teaching. The church's request for a religious waiver from state antidiscrimination rules has made no headway.
• Christian clubs at several universities are fighting to maintain school recognition while restricting their leadership to those who conform to their beliefs on homosexuality.
Meanwhile, the Christian Legal Society and similar groups are mounting a national effort to challenge antidiscrimination policies in court, claiming they end up discriminating against conservative Christians.
"The fight over same-sex marriage - and two very different conceptions of the ordering of society - will be a knock-down, drag-out battle," predicts Marc Stern, a religious liberty attorney at the American Jewish Congress.
Both sides are pursuing their agendas in state legislatures, courts, and public schools. Both sides tend to view the struggle as a zero-sum, society-defining conflict. For supporters of gay marriage, it represents the last stage in America's long road to equality, from racial to gender to sexual equality. For opponents, traditional marriage stands as the God-ordained bedrock of society, essential to the well-being of children and the healthy functioning of the community.
While no one expects the courts to force unwilling clergy to perform weddings for same-sex couples, some see a possibility that religious groups (other than houses of worship) could lose their tax-exempt status for not conforming to public policy, as did fundamentalist Bob Jones University, over racial issues in 1983.
Legal experts of various views met last December, hosted by the Becket Fund, a nonpartisan institute promoting religious free expression, to consider the implications of same-sex marriage for religious liberty. Writing about the conference in The Weekly Standard, Maggie Gallagher quoted participants as seeing the coming litigation as "a train wreck," "a collision course," and "the battle of our times."
To ameliorate such conflict, some insist that, given the nation's commitment to both equal rights and religious liberty, accommodations must be found.
"This set of issues tests us in new ways, and I don't think either side is going to win the day," says Charles Haynes, of the First Amendment Center in Washington, in an interview. "For the foreseeable future, we are going to be living with two important claims, and we have to find ways to protect the rights of people on all sides."
Douglas Laycock, of the University of Texas Law School, suggests a modification to the current joint administration of marriage by the state and religious groups.
"We can never resolve the debate over same-sex marriage until we separate legal marriage from religious marriage," he says in a conference paper. "The state should administer legal marriage, and its rules ... should be made through the political process. Religious organizations should administer religious marriages," making their own rules. The legal relationship "could be called 'civil union' for gays and straights alike."
Ms. Gallagher, head of the Institute for Marriage and Public Policy, worries about any delegalizing of marriage. "That would be a good solution if there weren't a great public purpose to marriage that needs legal support to sustain.... If you chop it into pieces, that's a powerful statement by the law that there's no important purpose to marriage as a public institution."
The most immediate skirmish in the battle takes place next week, when the US Senate will debate and possibly vote on a federal constitutional amendment defining marriage as only between a man and a woman. While the amendment may not gain the needed two-thirds majority, the debate positions the issue as a hot-button topic for the coming political campaign.