The battle over same-sex marriage is shaping into something more
than deep societal tradition vs. civil rights. It is becoming a
conflict of equality vs. religious liberty.
As gays make gains, some religious institutions are coming under
pressure. For instance:
* A Christian high school in Wildomar, Calif., is being sued for
expelling two students on suspicion of being lesbian. The parents'
suit claims that the school is a business under state civil rights
law, which prohibits discrimination based on sexual orientation.
* Catholic Charities in Boston, where same-sex marriage is legal,
recently shuttered its adoption agency rather than serve gay and
lesbian couples in conflict with church teaching. The church's
request for a religious waiver from state antidiscrimination rules
has made no headway.
* Christian clubs at several universities are fighting to
maintain school recognition while restricting their leadership to
those who conform to their beliefs on homosexuality.
Meanwhile, the Christian Legal Society and similar groups are
mounting a national effort to challenge antidiscrimination policies
in court, claiming they end up discriminating against conservative
"The fight over same-sex marriage - and two very different
conceptions of the ordering of society - will be a knock-down, drag-
out battle," predicts Marc Stern, a religious liberty attorney at
the American Jewish Congress.
Both sides are pursuing their agendas in state legislatures,
courts, and public schools. Both sides tend to view the struggle as
a zero-sum, society-defining conflict. For supporters of gay
marriage, it represents the last stage in America's long road to
equality, from racial to gender to sexual equality. For opponents,
traditional marriage stands as the God-ordained bedrock of society,
essential to the well-being of children and the healthy functioning
of the community.
While no one expects the courts to force unwilling clergy to
perform weddings for same-sex couples, some see a possibility that
religious groups (other than houses of worship) could lose their tax-
exempt status for not conforming to public policy, as did
fundamentalist Bob Jones University, over racial issues in 1983.
Legal experts of various views met last December, hosted by the
Becket Fund, a nonpartisan institute promoting religious free
expression, to consider the implications of same-sex marriage for
religious liberty. Writing about the conference in The Weekly
Standard, Maggie Gallagher quoted participants as seeing the coming
litigation as "a train wreck," "a collision course," and "the battle
of our times."
To ameliorate such conflict, some insist that, given the nation's
commitment to both equal rights and religious liberty,
accommodations must be found.
"This set of issues tests us in new ways, and I don't think
either side is going to win the day," says Charles Haynes, of the
First Amendment Center in Washington, in an interview. "For the
foreseeable future, we are going to be living with two important
claims, and we have to find ways to protect the rights of people on
Douglas Laycock, of the University of Texas Law School, suggests
a modification to the current joint administration of marriage by
the state and religious groups.
"We can never resolve the debate over same-sex marriage until we
separate legal marriage from religious marriage," he says in a
conference paper. "The state should administer legal marriage, and
its rules ... should be made through the political process.
Religious organizations should administer religious marriages,"
making their own rules. The legal relationship "could be called
'civil union' for gays and straights alike."
Ms. Gallagher, head of the Institute for Marriage and Public
Policy, worries about any delegalizing of marriage. "That would be a
good solution if there weren't a great public purpose to marriage
that needs legal support to sustain. …