The expansion of “gay marriage” in the United States would create clashes between church and state that might restrict the religious freedom of Americans who oppose such unions, legal scholars predict.
The expansion of "gay marriage" in the United States would create clashes between church and state that might restrict the religious freedom of Americans who oppose such unions, legal scholars predict.
The legalization of "gay marriage," it was forecast, could impact, for example, the housing and employment policies of religious schools and other institutions and even the tax-exempt status of churches and parachurch organizations.
The disclosure of such predictions came as the U.S. Senate prepared to vote on a constitutional amendment to limit marriage to a man and a woman. Senators are scheduled to begin debating the Marriage Protection Amendment, S.J. Res. 1, June 5, with a vote expected June 6 or 7.
The Southern Baptist Ethics & Religious Liberty Commission and other conservative religious organizations have been promoting a federal amendment as the only solution for efforts in the courts to legalize "gay marriage." Though Massachusetts is the only state to have legalized "gay marriage," high courts in New Jersey, New York and Washington could legitimize same-sex unions before the end of the year.
It appears proponents of the MPA may be fighting to protect not only marriage but religious liberty as well.
"Legal redefinition of marriage will be an engine for religious freedom litigation for years to come," said Anthony Picarello, president of the Becket Fund for Religious Liberty. "Wherever ‘same-sex marriage’ is part of the law, government will be requiring equal treatment of ‘same-sex marriage,’ and that is something most religious groups cannot abide. And that means church-state conflict."
Recognizing the potential for conflict, the Becket Fund convened a private conference of nine legal scholars last December to examine the implications for religious liberty of legalized "gay marriage" and to produce papers on the topic. The Becket Fund, which is well known for defending religious adherents of all types, selected lawyers from across the political spectrum, from Georgetown University law professor Chai Feldblum, a leading advocate for homosexual rights, to conservative Pepperdine University law professor Doug Kmiec.
Despite their differences, the scholars all agreed — the legalization of "gay marriage" will produce widespread clashes between church and state.
It will be a "very dangerous train wreck," one of the panelists, Marc Stern, general counsel of the American Jewish Congress, told columnist Maggie Gallagher in the May 15 issue of The Weekly Standard.
And it will or should, depending on the viewpoint, infringe religious freedom, some of the scholars said.
"This increased judicial approval of ‘same-sex marriage’ will metastasize into the larger culture," Kmiec wrote in a May 26 column for the Chicago Tribune. "Indeed, an insidious, but less recognized, consequence will be a push to demonize — and then punish — faith communities that refuse to bless homosexual unions."
When religious liberty and sexual liberty clash, Feldblum told Gallagher, "Sexual liberty should win in most cases. There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that’s the only way that the dignity of gay people can be affirmed in any realistic manner."
One of the reasons for the widespread conflict is marriage’s pervasiveness in the law, Picarello told Baptist Press.
"Marriage is everywhere in the [legal] code, and so there are going to be as many conflicts as there are places where marriage exists in the code," he said. "The thing about changing the definition of marriage is it just brings the scope of conflict to a whole new level."
It appears there will be two categories of cases in this conflict, Picarello said. In one, the state will seek to compel directly churches and religious organizations "to treat same-sex and different-sex couples equally on threat of liability." In the other, churches may win a legal challenge of the state’s action on First Amendment grounds, but the government might punish them by withdrawing benefits or accommodations it would normally provide.
The cases could involve everything from student housing at a religious university to a plot in a cemetery operated by a church or religious organization, and "hundreds of things" in between, Picarello said.
He offered the following scenarios as examples of what is likely under a "gay marriage" regime:
– A homosexual couple with a marriage license could request married student housing even at a college that bars same-sex couples for religious reasons.
– Religious institutions could be required to provide "homosexual spouses" with benefits.
– Religious employers could be prohibited from firing employees who enter "gay marriages."
– A person could seek access to his "same-sex spouse’s" family plot in a religiously owned cemetery.
Catholic Charities of Boston already has pulled out of the adoption business because Massachusetts refused to make an exception for its decision not to place children with homosexual couples.
If a church or religious organization refuses to bow to the state and wins in court, the government may do what some cities have done to the Boy Scouts of America. Though the BSA won in the Supreme Court the right to bar homosexual leaders, some local governments have pulled benefits from the Boy Scouts that they previously enjoyed.
The "Big Kahuna" when it comes to government action against churches and religious organizations is tax exemption, Picarello told BP. "Many churches fear that more than they fear God Himself."
The withdrawal of tax-exempt status at the federal level for resistance to "gay marriage" appears unlikely for now, he said. "It could happen; it’s just not going to happen soon," he said.
The states are a "different matter," Picarello said. "Essentially, I wouldn’t want to be a religious institution relying on my tax exemption in a state like Massachusetts."
Picarello also said he doesn’t believe a pastor will be required to perform a "gay marriage" nor does he foresee a preacher being barred from speaking against such unions.
A state could, however, do what Massachusetts has done with justices of the peace, he said. The state has not permitted an exception for a justice who refuses to marry same-sex couples because it would conflict with his conscience.
"What the government may say [to ministers] is, ‘You can perform all the religious marriages you want, but if you want them to have legal effect, you’re going to need to provide that service" to everyone, Picarello said.
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