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
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.
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. …