Divide Over Religious Exemptions on Gay Marriage

The battle over gay marriage is heating up in the states, energizing religious groups that oppose same-sex relationships - but also dividing them.

In June, the U.S. Supreme Court gave married gays and heterosexuals equal status under federal law, but did not declare a nationwide right for gays to marry, setting the stage for state-by-state decisions. So faith leaders are forming new coalitions and preparing for the legislative and courtroom battles ahead.

Yet, traditional religious leaders, their supporters and the First Amendment attorneys advising them are divided over strategy and goals, raising questions about how much they can influence the outcome:

- Several religious liberty experts say conservative faith groups should take a pragmatic approach given the advances in gay rights. Offer to stop fighting same-sex marriage laws in exchange for broad religious exemptions, these attorneys say. "If they need to get those religious accommodations, they're going to have to move now," said Robin Fretwell Wilson, a family law specialist at the University of Illinois, Champaign-Urbana. Critics reject the idea as a premature surrender.

- Religious leaders lobbying for exemptions can't agree how broad they should be. A major difference is over whether for-profit companies should qualify for a faith-based exception.

- Some religious liberty advocates and faith leaders are telling houses of worship they could be forced to host gay weddings, with their clergy required to officiate. The Louisiana Baptist Convention is advising congregations to rewrite their bylaws to state they only allow heterosexual marriage ceremonies, and the Alliance Defending Freedom, a religious liberty group that opposes same-sex marriage, is advising the same. But legal experts across a spectrum of views on gay rights say it can't happen given strong First Amendment protections for what happens inside the sanctuary.

"A few people at both ends of the spectrum have talked about religion and religious freedom in a way that is really destructive," said Brian Walsh, executive director of the Ethics & Public Policy's American Religious Freedom program which has formed legislative caucuses so far in 18 states. "I think they've made it polarized and difficult to understand."

The issue of accommodating religious opponents has already been a sticking point in legislative battles. In Rhode Island and Delaware, disputes over broader religious exemptions led to the failure of some same-sex union bills. Both states went on to approve civil unions in 2011, then same-sex marriage this year. In New York, gay marriage became law only after Gov. Andrew Cuomo and the state's top two legislators struck an eleventh-hour compromise on religious exemptions.

Still, advocates for stronger religious protections haven't won anything close to what they've sought in the 13 states and the District of Columbia where gay marriage has been recognized.

A few states have approved specific religious exemptions related to housing or pre-marital counseling, or benefits for workers in private, faith-based groups, such as the Knights of Columbus, a Catholic fraternal organization, according to analysis by Fretwell Wilson. Most of the states have protected religiously affiliated nonprofits from potential government penalty for refusing to host same-sex marriage ceremonies.

The only other protection written into the laws is a provision First Amendment scholars consider redundant: All spell out that clergy are exempt from performing same-sex ceremonies and can't be sued for their refusal.

The overall result: a patchwork of regulation, with gaps that are likely to become the target of lawsuits. Massachusetts and Iowa, where same-sex marriage won recognition through the courts, have approved no enhanced religious exemptions related to the rulings.

The statehouse negotiations concern what, if any, exemptions religious believers should have in the public arena. Should a religious social service agency with government funding be required to legally recognize married same-sex couples in all circumstances? Should a congregation that makes money renting property to the public be required to allow gay wedding receptions in the space?

Some advocates go further, arguing religious accommodations should extend in some cases to individuals. In this view, owners of a mom-and-pop bakery that makes wedding cakes should be exempt. So too should the county clerk who issues marriage licenses, as long as someone else in the clerk's office can step in easily and provide the service.

Many cities and states have anti-discrimination ordinances that include sexual orientation, setting up fines or other penalties for failing to comply. Absent an exemption, objectors may have to shut down their businesses or give up their jobs, religious leaders say. They argue losing your livelihood is too harsh a punishment for views on such a core religious issue as marriage.

But gay rights advocates say this argument puts too heavy a burden on gays and lesbians, and presents them with an unfair set of choices.

"In some states, the price of equality in marriage has been agreeing to give up protections against discrimination as part of the negotiations," said Jenny Pizer, senior counsel for the gay rights group Lambda Legal. "In ways, I think, other politically vulnerable groups are not required to pay that price."

Advocates for the exemptions don't agree on where they should go from here.

Nathan Diament, policy director for the Orthodox Union, which represents Orthodox Jewish congregations and has been a prominent voice on religious liberty issues, said his group hasn't taken a position on the religious rights of businesses or employers, but has advocated for broader religious exemptions for employees, such as a clerk who issues marriage licenses. The U.S. Conference of Catholic Bishops, which in the last two years has made religious freedom a signature policy issue, believes any organization with faith objections, whether a for-profit corporation or a nonprofit agency, should be exempt.

Fretwell Wilson is among legal experts urging faith groups to be practical, in light of growing public support for gay relationships, and focus solely on securing exemptions, instead of trying to block a specific gay marriage law. She is part of an informal group of lawyers who have been drafting model language for exemptions to share with state lawmakers. These legal experts differ on whether same-sex marriage should be recognized, but agree on the potential risks to religious liberty.

"The religious community would have done much better to ask for protection for their religious liberty instead of trying to stop same-sex marriage and try to prevent it for everybody," said church-state expert Douglas Laycock of the University of Virginia, who is recommending the more pragmatic course. "The more same-sex marriage seems inevitable, the less likely we are to see religious liberty protection in blue states."

But Matthew Franck, of the Witherspoon Institute, a conservative think tank in Princeton, N.J., argued the only real protection for religious freedom is maintaining the traditional definition of marriage. He said same-sex marriage advocates are unlikely to tolerate for long any "deviations from the 'new normal' they wish to create," so he predicted religious exemptions granted now will eventually be repealed.

"We have not lost the fight for the truth about marriage, and surrendering the field is premature," Franck said. "I continue to hope that it will never finally be necessary, and I work to make that hope a reality."

Whatever strategy the faith groups choose, there's no sign gay rights advocates are prepared to make major concessions.

Jonathan Rauch, senior fellow at the Brookings Institution, is one of the very few gay-rights supporters publicly urging fellow advocates to be more magnanimous. He argues that offering religious accommodations makes sense politically.

"I think there's a real risk that we will overreach and set up the other side to portray itself as the victim if we decide we have to stamp out every instance of religious based anti-gay discrimination," Rauch said. "I also think that there's a moral reason. What the gay rights movement is fighting for is not just equality for gays but freedom of conscience to live openly according to their identity. I don't think we should be in the business of being as intolerant of others as they were to us."

Others reject such accommodations.

Rose Saxe, an ACLU senior staff attorney, said the call for a middle ground, "while trying to sound reasonable, is really asking for a license to discriminate." And the Rev. Darlene Nipper of the National Gay and Lesbian Task Force said religious groups have another choice: They can accept same-sex marriage.