State recognition of same-sex marriage could put religious freedom at risk, study finds

Washington D.C., Nov 20, 2008 / 23:38 pm

As the legal status of California’s Proposition 8 remains uncertain, the Becket Fund for Religious Liberty has released a study examining the problems legal same-sex marriage poses for religious freedom. The Washington D.C.-based advocacy group reports that the legal recognition of same-sex marriage could affect over 350 separate state anti-discrimination laws and could render objectors to same-sex marriage vulnerable to lawsuits under such laws.

“If same-sex marriage is recognized by courts or legislatures, people and institutions that have conscientious objections to facilitating same-sex marriage will likely be sued under existing anti-discrimination laws—laws never intended for that purpose,” the Becket Fund states in a press release announcing the study’s publication.

The study, titled “Same-Sex Marriage and State Anti-Discrimination Laws,” examined more than 1,000 state anti-discrimination laws with a focus upon those which prohibit discrimination based on sexual orientation, gender, or marital status.

All 50 states prohibit gender discrimination in some way, while only 37 states have explicit religious exemptions to these provisions. According to the Becket Fund, many of these exemptions are “quite narrow.”

“This lack of robust exemptions could become a problem if (as has happened in some instances) religious objections to same-sex marriage are treated as a kind of gender discrimination,” the Becket Fund explains.

Additionally, 33 states prohibit at least some forms of discrimination based on marital status, with only 13 providing religious exemptions of varying restrictiveness. Most of these anti-discrimination laws relate to employment or housing, while a few relate to insurance and public accommodations.

Twenty states prohibit discrimination based on sexual orientation, with 18 providing exemptions for religious objection.

“By recognizing same-sex marriage without creating exemptions for conscientious objectors, states would inadvertently allow members of same-sex unions to sue religious organizations under gender discrimination laws,” the study says.

Considering the possible consequences of changes in marriage law, the Becket Fund study makes several recommendations.

Saying that altering the legal definition of marriage will affect a wide variety of state and federal laws, it advises “legislatures are better equipped than courts to balance the competing rights that must be considered when crafting policy.”

“When courts do consider same-sex marriage cases, they must take into account those competing rights and carve out robust religious exemptions,” the study suggests.

The Becket Fund recommends congressional hearings at the federal level to “bring attention to the conflicts between same-sex marriage and religious liberty.” Further, the Fund believes that Congress should also consider legislation which would reiterate constitutional protections for religious freedom and provide a “federal court remedy” for religious organizations penalized due to their objections to same-sex marriage.

At the state level, the study suggests state legislators enact additional exemptions from anti-discrimination laws “so that religious individuals and institutions are not forced to choose between following their consciences and following their government.”

“Legal recognition of same-sex marriage—whether imposed by courts or enacted by legislatures—poses a great threat to the freedom of conscience that has been honored in this country since before the Founding,” the study concludes. “That threat can be mitigated by creating specific protections for religious and other conscientious objectors to same-sex marriage.”