The way state Sen. Bob Onder (R) sees it, his proposed amendment to the Missouri constitution will only strengthen America’s traditions of pluralism and tolerance. Wedding vendors, for example, will now have the right to opt out of providing services for same-sex marriage ceremonies.
His critics might find that assertion ironic, of course. The controversial measure would shield individuals, business owners, and religious groups from government sanctions if they decide to opt out of participating in same-sex wedding ceremonies. It would also protect state employees who wanted opt out of providing same-sex marriage licenses and ceremonies.
The proposal has new momentum after Republicans on Wednesday broke a 39-hour filibuster by Senate Democrats to block the measure. If it passes the Missouri House, it would be presented to voters for approval later this year.
The legislative fight points to how conservatives are trying to adjust to the new social and legal landscape created by last year's Supreme Court ruling on same-sex marriage. For many conservatives, the ruling has raised a new question: If society can now accept same-sex marriages, shouldn't it also be flexible enough to allow room for religious folks to opt out of the specific ceremonial aspects of marriages for which they cannot in good conscience provide services?
The efforts to find such a new balance and carve it into law have proven explosive. In at least eight other states, including West Virginia and Georgia, conservative lawmakers have proposed new laws to bar any government “adverse action” against those with religious beliefs about marriage, including “that marriage should only be between a man and a woman.”
Such proposed laws are different from the “religious freedom restoration acts” that roiled Arizona, Indiana, and Arkansas last year. These new bills zero in specifically on protections for those with objections to participating in same sex marriage, rather than general protections for religious practices.
The Missouri measure, in some ways, ups the ante further by making these protections a part of the state constitution.
The struggle for a middle ground
It's specific focus means that it targets “goods or services of expressional or artistic creation” – the florists, bakers, and musicians who offer wedding services, though not retailers or venues per se. And it protects state employees who object to condoning same-sex unions.
“We understand the desire of public accommodations to be open, and to not discriminate against anyone,” says Senator Onder. “But again, in our pluralistic tradition, is there room for people who disagree with these things, to have freedom of association and not be forced to violate their consciences? My bill would answer that question in the affirmative.”
As in other states, Onder’s proposal has roused opposition from advocacy groups and business leaders – including corporations such as Dow Chemical and Monsanto – as well as Democratic Gov. Jay Nixon. They warn of dire economic consequences and lost state business like those seen in Indiana last year.
Throughout the debate, advocates opposing the measure have stressed that they want to affirm the importance of religious freedom. But limiting access to public accommodations would violate a bedrock social principle of equal access, they say.
“We’re opposing this bill so strongly not because we’re against religious freedom or religious liberty,” says Steph Perkins, executive director of Promoting Equality for all Missourians. “We think that religion, especially living in a state like Missouri, religion is incredibly important and vital for people’s well being.”
“But we don’t believe that religion should be used to refuse services to LGBT folks,” she continues. “We believe that religious freedom protections are already in the US Constitution and within our Missouri Human Rights Act, and these are too broad and go too far.”
For religious conservatives, it’s an intimate issue, one that cuts to the heart of a tradition that they see as deeply sacred. And many have accepted the fact that the social landscape has changed profoundly.
But now they want to carve out a public space in which they can be true to their religious convictions, while at the same time not be cast as social pariahs who simply want to discriminate in the admittedly ugly ways of the past.
“A lot of the success of the gay rights movement has been because Americans fundamentally believe in tolerance and pluralism, we believe in living and letting live,” Onder continues. “And much of it is good, because we don’t want people of same-sex orientation to be discriminated against. But we also don’t want people of religious faith with sincere religious objections about marriage, we don’t want them to be persecuted against either.”
Many point to examples in Colorado, Oregon, and Washington State, in which small business owners were sued by same-sex couples. Courts ordered the owners of an Oregon bakery to pay $135,000 in damages last year after they declined to bake a cake for a same-sex wedding. And many worry religious organizations and churches could ultimately lose their tax-exempt status if they are against participating in same-sex marriages.
"We're gonna provide a safe space where you're not going to be penalized simply for codifying in the way you do things, what you've always done and what you believe is based on scripture," George Paul Wood, coordinator of Religious Freedom Initiatives for the Assemblies of God national office, told a local TV station.
A different view of 'equality'
For William Eskridge, a professor at Yale Law School who has advocated for same-sex marriage for 25 years – one of the first constitutional scholars to do so – giving some space to those who would rather not participate in same-sex marriage ceremonies might make some sense, in the spirit of tolerance and pluralism.
“That a subset of the community is not comfortable with this, and they ought to be given space – that’s the idea of tolerance and pluralism,” Professor Eskridge says, emphasizing these are personal and not legal opinions. “That they don’t want to disrupt the marriage ceremonies, that’s tolerance on their part, pluralism on their part. But they don’t want to have to participate in these ceremonies, and what they’re asking for is space – tolerance for their going in a different direction.”
He calls this “equality practice,” a way to ease back from the tensions engendered from the profound social shifts that have happened as gay rights have been widely embraced. “I personally have no enthusiasm for requiring people to participate, even at this level of providing a wedding cake, in a ceremony that they find deeply objectionable,” Eskridge says, adding that the number of people who would choose to opt out is probably minuscule.
“As someone who supports gay rights, I am not in favor of pushing gay rights so aggressively so people who would rather step aside and not participate are pulled into participating in a whole event that they do not find congenial,” he says.
But this would clash head on with a bedrock idea of how we structure our access to public spaces, other gay rights advocates say. Laws of public access should be uniform and apply to everyone equally.
“It's really important if we’re talking about tolerance, what we are engaging in is really treating our fellow human beings as we would expect to be treated ourselves,” says Sarah Warbelow, the legal director of the Human Rights Campaign in Washington. “And that means not turning away people at the door because we’re different.”
“We can already in our churches and in the way that we express ourselves, say, 'You know, this is not something that we’re comfortable with. I don’t think it’s something that my church should condone, and I might not even welcome a same-sex couple into my home for dinner because I don’t think they should be married,' " she adds. "But when it comes to our daily lives, people shouldn’t have to fear that when they walk into a public store, that every other person who's able to pay for services gets to go into, that they’re going to be turned away, that they’re going to be humiliated.”
Onder says that many of the couples who sued the baker and florists in other states never really wanted these services, but used “well meaning ordinances” to protect gay rights “as a sword to really persecute someone who disagreed with their point of view.”
For Yale's Eskridge, the stunning social transformation during the past decade should not now be used a sword. “Everything evolves,” he says. “Thirteen years ago, a lesbian couple in Missouri could have been arrested if they were engaged in consensual marital-like intimacy. They could have been arrested! Today they can get married, and I think that is a major advance.”
“So the pluralistic constellation that is Missouri and other states have already changed enormously, and now need gentle nudges rather than hard shoves,” he continues. “That is the best way to proceed from a gay-rights point of view, and from a point of view of respecting pluralistic diversity.”