Would religious freedoms be violated by same-sex ‘marriage’?
EDITORS' NOTE: This is the 15th story in a series examining the national debate over same-sex "marriage." The series appears in Baptist Press each Friday.
NASHVILLE, Tenn. (BP)--In the national push to legalize same-sex “marriage,” supporters consistently refer to a division between civil marriage and religious marriage.
Same-sex “marriage” won’t infringe on religious freedoms, they say, because ministers won’t be forced to perform the ceremonies.
It’s a common argument.
GLAD, a homosexual activist organization based in the New England states, has a section on its website distinguishing between the “two types of marriage.” The website for the Human Rights Campaign -- the nation’s largest homosexual activist group -- has a list of talking points, one of which answers common objections to homosexual “marriage.”
“Civil marriage and religious marriage are two separate things,” it reads. “Religious institutions will never be forced to bless relationships with which they disagree, just as today religious institutions can refuse to marry couples of different faiths or individuals who have been divorced.”
Conservatives and traditionalists agree that it is highly unlikely that ministers would be told to perform same-sex “marriage” ceremonies. But they quickly point out that religious freedom entails much more than involvement in a same-sex ceremony.
“Remember what the argument is for the constitutional illegitimacy of traditional marriage law,” Princeton University law professor Robert P. George told Baptist Press. “That argument is that the law lacks a rational basis and is predicated instead on bigotry.
“... So if the belief in traditional marriage is a form of bigotry, then people who hold that belief and act on it in the religious sphere are likely to be treated the way racial bigots are treated when they act on racial bigotry in the religious sphere.”
Ministers probably won’t be forced to perform a ceremony, George added, but their churches could see moves to remove their tax-exempt status if they refuse to participate in a same-sex service.
A change in the marriage laws “almost certainly will” infringe on the freedoms of religious people, George said. It could happen as early as this summer, when Massachusetts is scheduled to become the first state with legalized same-sex “marriage.”
For example, what would happen if a county clerk who is a practicing Catholic refuses to grant a marriage license to a homosexual couple, claiming such an action would violate her beliefs?
There is a parallel in Canada. There, marriage commissioners -- similar to justices of the peace in America -- have been told either to perform same-sex ceremonies, or quit.
“Think of what you would do to a county clerk who refused to issue a marriage certificate to an interracial couple,” George said. “Since the premise is that this is bigotry just like racial bigotry, the conclusion would seem to follow as night follows day.”
Conservatives like George point to what they see as a contradiction in the argument of same-sex “marriage” supporters. On one hand, supporters say that the traditional definition of marriage is biased and even bigoted. On the other hand, supporters say religious freedom won’t be impacted.
In February, Sen. Mark Dayton, D.-Minn., told a group of homosexual activists that if a proposed amendment to the Minnesota constitution passes, “the forces of bigotry and hatred will have had their say.” He also said a proposed federal amendment is “un-Christian.”
Glenn Lavy, an attorney with the Alliance Defense Fund, says that same-sex “marriage” would violate religious freedoms in the workplace, in schools and throughout society.
Schools could be forced to teach that same-sex “marriages” and traditional marriage are identical, he said.
“Proponents of same-sex marriage claim that it is a civil right,” he said. “If same-sex marriage becomes the law and is treated as a civil right, then the government will treat same-sex marriage the same way they treat race.”
Both George and Lavy point to a case from the 1970s and ’80s in which the IRS pulled Bob Jones University’s tax-exempt status due to its racial policies. The university sued, claiming that its religious liberties had been violated. The U.S. Supreme Court eventually sided with the IRS.
“The IRS said there is a strong public policy against discrimination in education and that not allowing interracial dating is discrimination, so they took away the tax-exempt status,” Lavy said. “... There are already people making the argument that anyone who disagrees with homosexual behavior should not have tax-exempt status. If same-sex marriage becomes law, more than likely any church who holds to the historic biblical position will be denied tax-exempt status.”
Same-sex “marriage” legalization also could lead to restrictions on what is broadcast on the airwaves -- similar to what is taking place in Canada, Lavy said.
Those who claim same-sex “marriage” is a civil but not a religious issue, Lavy said, “are either naive or being less than honest.”
Harvard University law professor Mary Ann Glendon made a similar argument recently, when she said that a “live-and-let-live” policy likely wouldn’t follow same-sex “marriage” legalization. She pointed to other countries as evidence.
“Gay-marriage proponents use the language of openness, tolerance and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination the likes of which we have rarely seen before,” she wrote in a Wall Street Journal commentary. “Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against.”
In many ways, claims of discrimination are already being made. A homosexual student sued Seton Hall University March 10, claiming he was discriminated against when the school chose not to formally recognize his homosexual student group. Seton Hall, a Catholic University, says such a group goes against its beliefs.
“Rosa Parks never sat in the middle of the bus,” the student told Newsday.
George, the Princeton professor, said same-sex “marriage” is another way for homosexual activists to seek approval for their beliefs. The strategy is one of incrementalism, he said.
“The cultural left has always claimed disingenuously that they were only interested in ensuring the toleration of private immorality,” George said. “... They always denied that they were seeking approval, much less the state enforcement of their views. But it turns out that they were lying. What they were actually seeking was not to put a stop to the imposition of morality, but rather to impose a different morality.”
The arguments for and against sodomy laws are one example of the incremental strategy, George noted. In the 1960s, he said, liberals argued that sodomy laws shouldn’t be enforced because it was regulating private immoral action.
“They conceded that it was immoral, but said, ‘We shouldn’t enforce private immorality. It was a victimless crime.’ In 2004, we’ve come all the way around to saying not only does the state have to tolerate it, the state has to approve it and even give it the legal sanction of marriage.”
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