Gay Marriage: A New Bind for Church Groups

Article excerpt

The same-sex marriage march begins across California Tuesday, with thousands of gay couples expected to wed in the coming weeks. But some notes of discord and rebellion can already be heard above Pachelbel's Canon.

Several county clerks have said they will stop performing marriage ceremonies for all couples, gay or straight. And the state supreme court, fresh from its decision to legalize gay marriage, will decide shortly on whether a private-practice doctor can deny artificial insemination to a lesbian couple.

As gay marriage gains wider legal footing, scholars anticipate a flood of such conscientious objector cases. A key flash point will be religiously affiliated organizations that serve the public, such as hospitals, schools, and adoption agencies, and hold beliefs opposed to gay marriage.

Gay rights advocates say the courts have found workable compromises so far. But opponents warn that religious groups may have to retreat dramatically from the public square unless legislatures agree to create some religious exemptions.

"As gays come out of the closet, conservative religious people are put back in the sanctuary," says Marc Stern, general counsel for the American Jewish Congress in New York.

He expects legal battles ahead in religious schools, youth groups, and summer camps. Some recent cases have already alarmed lawyers for religious groups:

* In 2006, a Methodist group in New Jersey that rented out its boardwalk to the public for weddings lost tax exemptions after refusing to allow a same-sex commitment ceremony.

* In April, a New Mexico human rights commission charged a wedding photographer in Albuquerque thousands of dollars in legal fees after she refused, based on her Christian beliefs, a request to shoot a commitment ceremony.

* After the legalization of gay marriage in Massachusetts, the legislature refused to grant longtime adoption provider Catholic Charities a religious exemption to let it place children with heterosexual parents only.

Stern notes that Catholic Charities in Boston ultimately withdrew from providing adoption services to the public. Though it lost its exemption case, he feels exemptions are the best way to avoid the cloistering of religious-based groups.

"On these contested moral issues, an exemption route in the long term is sounder than an attempt to suppress behavior you think is immoral but you have no chance of persuading a majority of your fellow citizens to agree, certainly over the long term," says Mr. Stern.

Legislative exemptions would also forgo a "train wreck" of case- by-case decisions in the courts, argues Robin Wilson, a law professor at Washington & Lee University. She's editing a forthcoming book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts," in which she draws parallels to the legal turmoil following the Roe v. Wade decision legalizing abortion.

"Same-sex marriage is divisive in our society in a lot of ways that abortion was," says Ms. Wilson. "There's this rich variety and history around abortion that gives us a whole bunch of ways to accommodate religious conviction and the legitimate need of same sex couples to enter into marriage."

Following the Roe v. Wade decision on abortion in 1973, courts saw an initial flurry of conscientious objector cases, followed by a host of legislative exemptions.

At the federal level, the Church Amendment prevented the threat of withholding federal monies to compel individuals or institutions to perform an abortion contrary to their beliefs. …