Gay Marriage and Religious Liberty

With the recent developments in Iowa and Vermont, gay marriage has now been instituted in four state supreme court decisions and one legislative vote (and civil unions are authorized in other states).  One of the court decisions has been overturned narrowly by the voters, but the ease of California's amendment-by-initiative process suggests that may be unlikely to happen elsewhere.  In none of these instances did the decisionmaker simultaneously resolve the significant questions that arise about the effect recognizing gay marriage will have on religious liberty.  Courts, of course, can't do so; they only decide the case before them and leave further questions for another day.  Vermont's bill does not address most of the religious-liberty questions.

The primary religious-liberty concern is not the one dealt with in the Vermont statute: that objecting clergy or houses of worship would have to perform or host same-sex marriages.  That prospect seems extremely unlikely anyway.  Attacks on the tax-exempt status of traditionalist churches are more likely, but still doubtful.  But recognition of gay marriage will definitely make it more likely that 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 in several ways:  (1) Most obviously, directly triggering the obligation to pay spousal benefits.  (2) Depriving religious organizations of the (sometimes successful) argument that they discriminate against all extramarital sex and not on the basis of sexual orientation.  See CLS v. Walker, 453 F.3d 853, 860 (7th Cir. 2006).  (3) Strengthening the gay-rights argument that there is a compelling governmental interest against sexual-orientation discrimination, overriding a constitutional religious freedom claim, in virtually every context -- not just marriage but also hiring and other associational decisions by private religious organizations.  See, e.g., Bob Jones Univ. v. U.S. (allowing stripping of tax exemption on ground that prohibition of race discrimination in numerous other contexts shows a "firm national policy" and a compelling, overriding interest).

It may be time for defenders of traditional opposite-sex marriage to shift some attention from trying to stop gay marriage to trying to secure religious liberty protections, at least in states where there is a significant prospect that the courts or the legislature will recognize gay marriage.  Once that decision of recognition has happened, the traditionalist religious organization is on much weaker strategic ground in seeking protection to continue to pursue its vision of marriage in its employment and other decisions.  As Doug Laycock suggests in the conclusion to the excellent book of essays Same-Sex Marriage and Religious Liberty, there is opportunity at the front end to secure legislative compromises in which any recognition of same-sex marriage is accompanied by significant exemptions.  The exemptions should cover not just churches refusing to perform ceremonies -- symbolically important, in practice not a live issue -- but also religious schools and social services in their employment, leadership, and membership decisions.  But if traditionalists fight all the way to the mat on stopping gay marriage altogether, they may lose opportunities to secure such protection.

Tom