Same-Sex Marriage and Religious Liberty

November 19, 2013

Hawaii recently became the fifteenth state to legalize same-sex marriage. As more and more states recognize same-sex marriage, there’s been some noise about how legalization of same-sex marriage may infringe on freedom of conscience and violate the rights of some religious believers. As far as I can tell, this is a needless worry.  In fact, the lack of any legitimate basis for concern makes one suspect this hand-wringing over the supposed threat to religious liberty is merely a veiled attempt to derail the movement to legalize same-sex marriage.

The concern expressed most often by some of the religious, usually conservative Christians, is that legalization of same-sex marriage may lead to discrimination lawsuits against businesses that refuse to provide services to same-sex couples (for example, rental of facilities, catering, housing).  Allegedly, such suits, if successful, would deprive some persons of their religious liberty. Another concern is that churches, temples, and mosques will be required to allow same-sex couples to marry.

This last concern is clearly misplaced. Requiring a priest, minister, rabbi, or imam to solemnize the marriage of a couple they object to marrying would be plainly unconstitutional. Religious organizations can exclude whoever they want from their ceremonies.  Our Constitution provides for a secular government: one that has no powers relating to religious doctrine. If the Catholic Church can refuse to solemnize the marriage of a divorced person, then it can rest assured the State is not going to require it to marry a same-sex couple. The suggestion that the government can require religious institutions to perform a marriage ceremony for anyone is a bogeyman, a phantom worry.

How about secular businesses whose owners have an objection based on their religious beliefs to providing services to same-sex couples? Two part answer. First part is whether a discrimination lawsuit could be successfully maintained. This depends on the service being provided as well as local law. Some jurisdictions prohibit denial of public accommodations based on sexual orientation. In these states and localities, a suit against a facility that rents its space out to members of the public generally, but not to same-sex couples, might be successful.

Second part of the answer is whether it’s a good idea to allow such a discrimination suit, that is, is such a suit consistent with our commitment to religious freedom? The answer is “yes.” Such a lawsuit would not infringe religious freedom as it has been customarily understood—at least until recently. The notion of allowing legal exemptions for conscientious objection grew out of the exemptions from compulsory military service traditionally granted to certain religious believers, such as Friends (Quakers). In that narrow situation, an exemption not only makes practical sense (why give a rifle to someone who’s not going to use it?) but compelling someone to join the military is correctly seen as forcing someone to act against their religious beliefs. But no one is forced to start a business—as a hotel owner, a caterer, a photographer, whatever. If a person does choose to go into a business, or pursue a particular profession, that person can rightly be expected to comply with all relevant laws, provided they are religiously neutral, that is, they do not specifically target that person’s religious beliefs.  The alternative would be to have all business and professional relations controlled by believers’ interpretation of religious doctrine. There is no reason to single out objections to gay and lesbian couples for special treatment. Any religious objection would be entitled to deference. Jewish restaurant owners could insist on separate eating sections for men and women, fundamentalist Christian cab drivers could refuse to transport interracial couples, male Muslim physicians could refuse to treat female patients, and so on.

Government cannot interfere with religion; the reciprocal relationship also holds true. Religion cannot dictate how laws are to be applied. Church and State are, and should be, separate.

Religious liberty is an important value. The government must respect religious beliefs, and should not compel a person to perform an act affecting that person’s body that is inconsistent with that person’s beliefs.  But that does not imply the religious can attempt to control the actions of others. The State cannot and should not force you into a same-sex marriage, require you to drink alcohol, mandate that you take birth control pills, make you sit next to a woman in a restaurant, or send you against your will to medical school. However, the State can require its citizens, religious and nonreligious, to obey all valid laws and to respect the rights of others—respect their decisions to drink, associate with people of the other sex or another race, use contraception, and enter into a lawful marriage with the partner of their choice. To hold otherwise would be to replace the rule of law with a chaotic system of taboos.