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.

By , Staff writer of The Christian Science Monitor

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.

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.

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• 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.

Religious leaders on both sides of the Marriage Protection Amendment have formed coalitions, demonstrating that religious perceptions vary considerably.

Some 50 leaders from Roman Catholic, Mormon, Southern Baptist, Orthodox, Evangelical, and Orthodox Jewish traditions formed the Religious Coalition for Marriage, focused on strengthening its traditional role in society. They see the amendment as essential to protect "marriage from ... activist courts determined to reinterpret this fundamental institution ... against the will of the American people," says Richard Land, a leader of the Southern Baptist Convention.

(A recent Gallup poll found 58 percent of Americans opposing same-sex marriage and 39 percent favoring it. The country is split on a constitutional amendment: 50 percent in favor, 47 percent opposed.)

On the other side, Clergy for Fairness - including leaders from mainline Protestant and Reform Jewish denominations - says that people of faith disagree on same-sex marriage and that religious denominations, not the federal government, should decide whether they'll sanctify marriages. The group also says it opposes the amendment because it would mark the first time the Constitution would be used "to restrict the rights of an entire group of Americans."

Chai Feldblum, a Georgetown University law professor active on gay rights issues, argues that the government should view both heterosexuality and homosexuality as morally neutral - "though how you 'deploy' your sexual activity can be very morally laden," she says.

"It's an incredible stain on the government that it is denying governmental structures for loving relationships and families," she adds. Yet she acknowledges the genuine difficulty that same-sex marriage presents for some religious people.

"I'd like gay people to understand that when religious people have to do something against their belief," Professor Feldblum says, "that impinges on their deep sense of self, just as I would like religious people to understand that when gay people are told they ... can't marry their loved one, that impinges on that person's deep sense of self." She's wary of granting religious waivers on these issues, however.

In Gallagher's view, "We are in a situation where courts are declaring our great historic, cross-cultural understanding of marriage to be a form of bigotry. That's a very destructive message," when research shows that children do much better in households with a mother and a father.

Others worry about the harm litigation battles could do. "People on both sides see this as good vs. evil," says the First Amendment Center's Dr. Haynes, "and those positions are going to tear us apart, deeply hurt the nation and our commitment to civil rights and religious freedom."

Haynes has just worked with groups on both sides to develop sexual-orientation guidelines for public schools.

"I've been involved in brokering nine different guidelines on issues like the Bible and religious holidays, and this has been the hardest," Haynes says. After eight months, Christian educators and a gay group involved in school issues did agree on a process for local districts to use that each side thought was fair. Whether local districts pick up on the guidelines remains to be seen.

Clamor over textbooks, for example, has erupted in Massachusetts and in Canada, where kindergartners are being introduced to stories about families with same-sex parents. Although schools must reflect the legal status of such relationships in the curriculum, some parents are demanding notice and protections.

"Some will ask why those parents should be given consideration," Haynes says. "The answer is that this is America, and we try to do the best we can to protect the religious liberty of even the smallest minority.... This takes more work than simply saying 'winner takes all.' "

Yet who is going to broker common ground is the question as advocates on both sides seek complete victory. Legal experts expect a patchwork of legislation and court decisions to emerge.

"Then we will have to worry about how to deal with the fact we have different rules in different states," Mr. Stern says. "If two or three big states move to same-sex marriage, however, it's not going to work to have different definitions across the US."

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