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Gay marriage: a new bind for church groups

Religiously affiliated schools, hospitals, and others may be the next flash point.

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"Same-sex marriage is divisive in our society in a lot of ways that abortion was," says Ms. Wilson. "There's this rich variety and history around abortion that gives us a whole bunch of ways to accommodate religious conviction and the legitimate need of same sex couples to enter into marriage."

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Following the Roe v. Wade decision on abortion in 1973, courts saw an initial flurry of conscientious objector cases, followed by a host of legislative exemptions.

At the federal level, the Church Amendment prevented the threat of withholding federal monies to compel individuals or institutions to perform an abortion contrary to their beliefs. Most states followed suit with their own versions.

"I argue for conscience clauses, the same thing we have for abortions," says Wilson. Such exemptions allow physicians and religious hospitals to opt out of performing an abortion provided other doctors are available and the mother's life isn't in danger.

Similarly, county clerks like those in California's Kern and Butte Counties could opt out of issuing marriage licenses to same-sex couples – so long as there's another clerk around to do it. Ditto for adoption providers and artificial insemination cases.

Gay rights activists aren't warming to the mounting discussion of religious exemptions. They argue that courts have been balancing religious beliefs with antidiscrimination protections for many years.

"Our society has done a pretty good job balancing personal views, including religious views, with the need to have basic rules protecting everyone against discrimination in the public sector, and there is no need now for a special gay exception," says Evan Wolfson, executive director of Freedom to Marry and author of "Why Marriage Matters."

In California's case, the legal framework for balancing these competing interests has been in place for years, says Jennifer Pizer, a senior counsel at Lambda, a gay rights law group.

Since the 1950s, the state has had a civil rights act preventing discrimination, with sexual orientation added to it through case law and amendment. California has also provides for domestic partnerships with all the rights of marriages.

Over the years, when civil rights have bumped against religious rights, courts here have relied on a couple of broad distinctions, says Ms. Pizer. The first looks at whether the activity in question is primarily religious or secular. The second considers whether the group is actually incorporated as a religious entity or not. Religious activities by religious entities, like sacraments performed at churches, receive the broadest protections from competing values, like antidiscrimination claims.

Pizer points to a 2004 case in which Catholic Charities lost its bid to exempt birth control from its employee prescription-drug plan. Though affiliated with the Roman Catholic Church, Catholic Charities is not incorporated as a religious entity and its work consists primarily of social welfare programs for the general public.

"Groups that are worried that something new will interrupt their ability to function the way they are functioning will soon see that [gay marriage] will not change the rules that govern their public activities," says Pizer. "Those rules have been in place and work just fine."

Stern suggests, however, that gay marriage tends to make sexual orientation more explicit in many contexts, such as hotel accommodations, making more clashes inevitable. And the high court's rhetoric – comparing same-sex marriage bans to inter-racial marriage bans – threatens to elevate the level of protection afforded sexual orientation.

"If the courts treat this as a ban on racial discrimination," says Stern, "then there's not much likelihood that any religious claims will survive."