Same-sex marriage has serious implications for religious liberty, legal experts say


The legalization of same-sex marriage has launched the most significant cultural battle of our time and will have severe and far-reaching consequences for churches and religious organizations, many legal experts say.

In the cover story of the May 15 issue of the Weekly Standard, Maggie Gallagher predicts that the decision to legalize gay marriage will trickle down through the legal system and negatively impact churches on all fronts.

Her comprehensive report offers the insights and observations of several legal experts, who attended a December conference on the issue organized by the Becket Fund for Religious Liberty.

Gallagher is president of the Institute for Marriage and Public Policy and coauthor of  The Case for Marriage.

The recent conflict over gay adoptions in Boston and the decision of Catholic Charities in that city to withdraw from the adoption business is only one sign of the huge cultural battle to come between religious liberty and sexual liberty, Gallagher suggests. Gay marriage has already been legalized in Massachusetts.

“People who favor gay rights face no penalty for speaking their views, but can inflict a risk of litigation, investigation, and formal and informal career penalties on others whose views they dislike,” Gallagher writes.

“Meanwhile, people who think gay marriage is wrong cannot know for sure where the line is now or where it will be redrawn in the near future. ‘Soft’coercion produces no martyrs to disturb anyone's conscience, yet it is highly effective in chilling the speech of ordinary people,” she continues.
“Precisely because support for marriage is public policy,” she writes, “once marriage includes gay couples, groups who oppose gay marriage arel ikely to be judged in violation of public policy, triggering a host of negative consequences, including the loss of tax-exempt status.” 

“Because marriage is not a private act, but a protected public status, the legalization of gay marriage sends a strong signal that orientation is now on a par with race in the non discrimination game,” she states.

Among a number of legal experts, Gallagher interviews Marc Stern, general counsel for the American Jewish Congress, who sees the coming conflicts as pervasive. The problem is not that clergy will be forced to perform gay marriages or prevented from preaching their beliefs, he says, the problem is the sweeping and unpredictable impact it would have on American law.
He says same-sex marriage will affect religious educational institutions in at least four ways: admissions, employment, housing, and regulation of clubs.

In addition, he foresees future conflict with the law in regard to licensing, as well as psychological clinics, social workers, marital counselors, etc.

He also warns that the expression of opposition to gay marriage in the corporate world will not be suppressed by gay advocates but by corporate lawyers,“who will draw the lines least likely to entangle the company inlitigation,” Gallagher writes.

According to Stern, churches might be able to defend their tax-exempt status basedon the First Amendment, but "the parachurch institutions are very much at risk and may be put out of business because of the licensing issues."

Gallagher also interviewed Robin Wilson, an expert in family and health care law, who unlike Stern, believes that public-support arguments may be advanced to compel churches to participate in same-sex marriage or risk losing their tax-exempt status.

Wilson also points out that the First Amendment did not prevent religious hospitals from being punished for refusing to perform abortions, once abortion became a constitutional right. It was Congress and state legislatures that stepped in to provide statutory religious exemptions. The same will likely need to happen regarding same-sex marriage.

Gallagher also interviewed Georgetown law professor Chai Feldblum, known for her work on civil rights issues, especially gay civil rights. She has drafted many federal bills to prohibit “orientation discrimination,” reports Gallagher.

Feldblum also sees how anti-discrimination laws pose a burden on religious groups. "When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians," she told Gallagher.

Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, Feldblum argues. But that does not make it right to pretend these burdens do not exist or do not matter.

While the burdens must be considered each time a law is passed, she said she believes sexual liberty should win out in most cases “because that's the only way that the dignity of gay people can be affirmed in any realistic manner.”

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