Legalizing gay marriage will spark lawsuits against churches
April 7, 2008
WASHINGTON - After years of litigation and debate, the
California and Connecticut supreme courts are about to decide
the question of marriage. If, as some suspect, the courts
redefine the institution to include same-sex couples, they will
have entered a minefield of unintended consequences — especially
with regard to religious liberty.
The experience of legalizing same-sex marriage in Massachusetts,
and of civil unions elsewhere, cannot be ignored. It shows that,
even with the best of intentions, legalizing same-sex marriage
will seriously undermine the religious freedom citizens have
enjoyed since the founding.
Although the First Amendment protects dissenting houses of
worship from being forced to perform same-sex wedding ceremonies
against their will, that is not the end of the story — it is
barely even the beginning.
Simply changing the definition of marriage opens the door to a
flood of lawsuits against dissenting religious institutions
based on state public accommodation and employment laws that
prohibit marital status and sexual orientation discrimination.
Additionally, religious institutions that refuse to recognize a
new state-imposed definition could be stripped of access to
government programs, have their tax exemption denied and even
lose the ability to solemnize civil marriages.
We need only look at Massachusetts for a preview of what to
expect. There, in 2004, justices of the peace who refused to
solemnize same-sex unions due to religious objections were
It did not matter that other justices of the peace were
available to do the job because, by Massachusetts law, same-sex
unions were now entitled to equal treatment. A religious belief
became a firing offense.
It is but a small step for the state to impose this rationale on
churches and other houses of worship and end legal recognition
of religious marriage ceremonies that do not comply with the
state's expanded definition of marriage.
This is not the only example of what is to come. Massachusetts,
like many other states, strictly regulates private adoption
agencies through licensing. Historically, this has not posed any
difficulties for religious institutions, but Massachusetts now
demands that all licensed adoption agencies be willing to place
children with legally married same-sex couples.
However, Catholic Charities, the largest private social service
provider in the state, could not in good conscience place its
orphan children into homosexual households. After a bitter
struggle, Boston Catholic Charities was forced out of the
adoption business because it refused to embrace the state's new
definition of marriage. The result was doubly tragic because
both orphan children and religious liberty took the hit for this
misguided attempt at equality.
Two more real-world examples illustrate the danger. In New
Jersey, the city of Ocean Grove recently yanked a Methodist
institution's real estate tax exemption because it refused to
perform civil unions in its outdoor wedding pavilion.
In Iowa, the Des Moines Human Rights Commission found the local
YMCA in violation of public accommodation laws because it
refused to extend "family membership" privileges to a lesbian
couple that had entered a civil union in Vermont.
Based on the ruling, the city forced the YMCA to recognize gay
and lesbian unions as "families" for membership purposes, or
lose $102,000 in government support for the YMCA's community
programs. Equal provision of benefits to all couples was not
enough — only the YMCA's explicit adoption of the state's new
definition of family fulfilled the government's requirements.
This list barely mentions the avalanche of employment
discrimination lawsuits religious institutions will face, if,
for example, employees at religious institutions publicly enter
same-sex unions in violation of the institution's teachings and
Likewise, religious colleges and universities would run afoul of
housing discrimination laws if they were to offer housing
benefits for husband-and-wife couples but decline to do so for
married same-sex partners.
Are we better off as a community if religious charities are
forced to close their doors because the state redefines what is
and is not a marriage? Are we better off if, for example, the
Salvation Army is forced to close because of employment
lawsuits, or if Catholic adoption agencies are forced to shutter
their offices? What would such a result say about tolerating
diversity and respect for religious liberty?
Lawmakers and judges need to consider all the consequences,
intended and unintended, before embarking on this path.
Roger Severino is a lawyer with the Becket Fund for Religious