Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Berg, Thomas C.]

I agree that it is extremely unlikely that an objecting church or clergyperson will be forced to host or perform a same-sex marriage.  But I wouldn't rest this on the argument that no couple would seek to be married by someone who doesn't want to marry them.  After all, it's a good question why any couple would want, from all the wedding photographers available, one "who [in Alan's terms] thinks their relationship is sinful and is only [conceiving and shooting the pictures] under threat of legal sanction."  To subject Elaine Huguenin, the photographer, to a legal sanction of $6,600-plus, all Vanessa Willcock and her partner had to do was complain to the New Mexico Human Rights Commission on the ground that they felt "shocked, angered, saddened," and "fearful" when Elaine told them she didn't do same-sex ceremonies.  It is hard to deny that some gay-rights proponents want to get antidiscrimination sanctions against conscientious objectors whose services they wouldn't actually want, or need, to use.  That may not extend to forcing houses of worship to marry people, but not because of a general "live and let live" attitude.

I applaud Alan's proposal for an exemption in the next California proposal, but why shouldn't the exemption be broader?  The hypothetical church pressured to perform a ceremony hardly exhausts the range of religious liberty issues raised by same-sex marriage.  Without significant exemptions, the advent of same-sex marriage in a state increases the prospect that non-profit religious schools and social services, even those with religious content throughout their programs, will be punished if they refuse to hire openly gay people as teachers or counselors or to pay benefits to their partners.  It may do this by directly triggering the obligation to pay spousal benefits, by changing the legal characterization of a hiring decision from marital-status discrimination to sexual-orientation discrimination, or by strengthening the claim that -- like race in Bob Jones -- there is a "firm [governmental] policy" against sexual-orientation discrimination in virtually every context.

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Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, Law,
     and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice
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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan [aebrownstein at ucdavis.edu]
Sent: Saturday, April 04, 2009 6:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: Americans United: Iowa Supreme Court       RulingOnMarriageUpholdsReligious Liberty, Says Americans United

As a hypothetical question, I think there is an extraordinarily slight possibility that churches or clergy will ever be required to host or officiate the marriages of same sex couples. But this issue isn't being raised as a hypothetical question. It is being argued as a basis for denying same-sex couples the right  to marry now. I suspect the reason why some members of this list used terms like "fear mongering" is because discrimination against gays and lesbians isn't speculative. It is real, ongoing, and hurtful. And is frustrating to hear people defend this discrimination on the basis of such a remote possibility in some future world that doesn't come close to existing now.

When I talk to people who are starting to prepare for the next constitutional amendment on same-sex marriage in California -- one that will be drafted by proponents of same-sex marriages -- there is a general consensus that one of the reasons Proposition 8 passed was that its supporters convinced people who didn't know any better that there was a real threat that their pastors and priests would be forced to marry same-sex couples. Virtually everyone I talk to is looking for ways to defuse this issue because they think it is false. No one wants to be married in a church that condemns their relationship by a member of the clergy who thinks their relationship is sinful and is only officiating at the ceremony under threat of legal sanction.

I am recommending that this new amendment recognizing the validity of same-sex marriages should include a provision guaranteeing that no member of the clergy or house of worship can be required to officiate over or host such a ceremony. I haven't met a single person who opposes that idea. Many think it is unnecessary because such compulsion is already prohibited by the First Amendment. But they still support the idea because it may make same-sex marriages seem less threatening to some voters -- and because no one cares about not being able to get married in a church that condemns their relationship in the first place.

Alan Brownstein
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