Gay marriage: a new bind for church groups

The same-sex marriage march begins across California Tuesday, with thousands of gay couples expected to wed in the coming weeks. But some notes of discord and rebellion can already be heard above Pachelbel's Canon.

Several county clerks have said they will stop performing marriage ceremonies for all couples, gay or straight. And the state supreme court, fresh from its decision to legalize gay marriage, will decide shortly on whether a private-practice doctor can deny artificial insemination to a lesbian couple.

As gay marriage gains wider legal footing, scholars anticipate a flood of such conscientious objector cases. A key flash point will be religiously affiliated organizations that serve the public, such as hospitals, schools, and adoption agencies, and hold beliefs opposed to gay marriage.

Gay rights advocates say the courts have found workable compromises so far. But opponents warn that religious groups may have to retreat dramatically from the public square unless legislatures agree to create some religious exemptions.

"As gays come out of the closet, conservative religious people are put back in the sanctuary," says Marc Stern, general counsel for the American Jewish Congress in New York.

He expects legal battles ahead in religious schools, youth groups, and summer camps. Some recent cases have already alarmed lawyers for religious groups:

• In 2006, a Methodist group in New Jersey that rented out its boardwalk to the public for weddings lost tax exemptions after refusing to allow a same-sex commitment ceremony.

• In April, a New Mexico human rights commission charged a wedding photographer in Albuquerque thousands of dollars in legal fees after she refused, based on her Christian beliefs, a request to shoot a commitment ceremony.

• After the legalization of gay marriage in Massachusetts, the legislature refused to grant longtime adoption provider Catholic Charities a religious exemption to let it place children with heterosexual parents only.

Stern notes that Catholic Charities in Boston ultimately withdrew from providing adoption services to the public. Though it lost its exemption case, he feels exemptions are the best way to avoid the cloistering of religious-based groups.

"On these contested moral issues, an exemption route in the long term is sounder than an attempt to suppress behavior you think is immoral but you have no chance of persuading a majority of your fellow citizens to agree, certainly over the long term," says Mr. Stern.

Legislative exemptions would also forgo a "train wreck" of case-by-case decisions in the courts, argues Robin Wilson, a law professor at Washington & Lee University. She's editing a forthcoming book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts," in which she draws parallels to the legal turmoil following the Roe v. Wade decision legalizing abortion.

"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."

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."