As originally written and introduced, the marriage bill that recently failed to pass in Maryland was very straightforward, simply removing the restriction that limits marriage to opposite-sex couples. Other laws in the state would have remained unchanged. However, a number of equality opponents expressed concern that some people would have to recognize the civil marriages of same-sex couples in violation of their sincerely held religious beliefs. Therefore, they introduced a variety of "conscience clause" amendments.
These amendments tell us a great deal about their supporters' real agenda, and it has nothing to do with a principled stand for religious liberty. The amendments did things like provide:
The common phrasing – violating someone's religious beliefs, as opposed to violating their First Amendment rights – is extremely important. It makes it sound like people's constitutional Free Exercise rights are being protected. But in Maryland and elsewhere, that is not the case: Provisions like these do not codify existing First Amendment rights to the free exercise of religion.
Neutral laws of general applicability that infringe on a person's religious beliefs have been upheld as not violating a person's First Amendment rights. For instance, in the 1990 Employment Division v. Smith case, the Supreme Court upheld Oregon's right to deny unemployment benefits to a person who had been fired for violating the state's anti-drugs laws (specifically, smoking peyote), even though the person smoked peyote as part of his religion.
In that case, with Justice Scalia writing for the majority, the Court ruled that the First Amendment does not allow a person to cite their own religious beliefs as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
Anti-discrimination laws have long required people to do things that may not be consistent with their religious faith. For instance, an election worker who believes God commanded the sexes to remain separate in public cannot force men and women to vote in different rooms. A white innkeeper who believes that God commands segregation must nevertheless open his inn to all races. An employer who believes God commanded women to defer to men cannot refuse to make women supervisors.
So opponents of marriage equality certainly aren't acting to protect anyone's constitutional right to religious liberty. What they are demanding is a religious exemption from laws they don't like.
As if that wasn't bad enough, it's only those who share their particular religious beliefs who they deem worthy of this special right.
Since the marriage equality bill in Maryland failed to pass, have these self-styled stalwarts of religious liberty insisted that the amendments they proposed be made into law anyway, as general religious liberty protections not targeting gay people as a class?
They have not.
Perhaps what drives them is animus toward gays and lesbians. Or perhaps it's an arrogant certainty that their religious beliefs and no one else's should be protected by law.
Whatever it is, it certainly is not a principled fidelity to religious liberty.
We faced a similar issue more than forty years ago, when people with religious opposition to interracial marriages found themselves in a society that no longer prohibited such marriages. Indeed, as the Virginia trial court judge wrote when convicting Richard and Mildred Loving of violating the state's prohibition of interracial marriage:
"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."
After Loving v. Virginia, our nation did not empower that judge or any other public official to opt out of performing his duty to marry eligible couples simply because he personally opposed interracial marriages on religious grounds. Nor did we empower public school teachers to "opt out" of teaching students that such couples exist. No different standard should be applied with respect to gay couples.
In last night's State of the Union Address, President Obama pledged to work with Congress and the military to repeal "Don't Ask, Don't Tell" this year.
Thousands of activists joined People For the American Way in urging the President to include the repeal of "Don't Ask, Don't Tell" in the defense budget proposal he sends to Congress early next month.
While it's not yet clear what the vehicle is going to be for repeal, the President's strong statement last night is an indication that he's getting the message. Now, it's up to the Obama administration to deliver on last night's pledge and it's up to all of us to make sure that it does.
We can't slack up in our fight to make sure that the administration and Congress advance pro-equality reforms this year. Anti-LGBT discrimination in the military, the workplace and, yes, in the institution of civil marriage must be addressed by this president and this Congress without delay.
You can join the fight for equality at:
Over the past few weeks, the DC Council has been considering a bill to allow gays and lesbians to marry in Washington, DC. In light of some misleading charges by Catholic Charities that the existing bill would impair its religious liberty – and its threat to withdraw charitable services from the homeless, the sick, and the orphaned – the Council is considering a poorly-worded amendment that would apply only to same-sex marriages, but not to any other civil marriage. The amended bill would provide that:
a religious society, or a nonprofit organization which is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a same-sex marriage, or the promotion of same-sex marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society's beliefs (emphasis added).
If the issue is genuinely protecting religious liberty, shouldn't it apply to all civil marriages and all religious beliefs?
If the issue is genuinely religious liberty, then shouldn't those with religious opposition to interracial marriages receive the same protection of their religious beliefs, noxious though they may be? Shouldn't those who believe God wants America to throw out all people of color be protected from having to provide services for non-whites' weddings? Or shouldn't they be allowed to force people to present proof of citizenship, if they claim their religious belief calls for America to expel undocumented aliens? If someone's religious belief is that Christians are worshipping a mortal man in violation of the Ten Commandments, why is her religious liberty less protected when she wants to deny services related to Christian weddings?
If the concern is genuinely religious liberty for all, then the bill should be written that way.
But if the only religious beliefs being "protected" are those condemning homosexuality, then that is in no way a religious liberty protection. The DC Council would be elevating one group's religious beliefs above all others, giving them special legal rights denied to others with different religious beliefs.
Any religious exception should apply to all religious beliefs and all types of civil marriages.
Today, Maine became the latest state to affirm the freedom to marry for same-sex couples, joining Massachusetts, Connecticut, Iowa, and Vermont when Gov. John Baldacci signed into law LD 1020, An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom. People For the American Way applauds Gov. Baldacci for recognizing that this is about fairness and equal protection under the law for all citizens of Maine. In a public statement, Gov. Baldacci said:
“In the past, I opposed gay marriage while supporting the idea of civil unions. I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage.
“Article I in the Maine Constitution states that ‘no person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against.’
“This new law does not force any religion to recognize a marriage that falls outside of its beliefs. It does not require the church to perform any ceremony with which it disagrees. Instead, it reaffirms the separation of Church and State.
“It guarantees that Maine citizens will be treated equally under Maine’s civil marriage laws, and that is the responsibility of government.”
This news comes a day after the D.C. Council voted 12-1 to recognize same-sex marriages performed in other states. Congratulations to the Maine Legislature and all those who are working hard to make fairness and equality for same-sex couples in Maine a reality.
Spring 2009 continues to be a historic season of equality. Earlier today, the New Hampshire Senate passed a marriage equality bill. The House passed the bill last month. However, because of a small amendment made by the Senate, the bill has to go back to the House.
According to the Manchester Union Leader:
A bill legalizing same-sex marriage in New Hampshire passed the Senate today on a 13-11 vote.
The bill, amended on the Senate floor, draws a distinction between civil and religious marriage, and says that any two individuals have a right to join together in a civil marriage.
Last week Senate Judiciary Committee chair Sen. Deborah Reynolds, D-Reynolds, opposed the bill and voted with a committee majority that it should be killed. She said voters in her district told her they favor the legislation, and urged the Senate to vote for an amendment that was drawn up Tuesday night.
She said the wording “gives everyone in the state the right to seek a civil marriage … This is a compromise that is respectful to both sides in this debate and meets our shared goals of equality in state laws for all the people of New Hampshire. The people of this sate share the core values of equality for all, tolerance and acceptance regardless of our differences”
In neither the House nor the Senate did the bill pass with anything approaching a veto-proof majority. So what will the governor do once the bill reaches his desk?
It’s not clear how Gov. John Lynch will handle the bill. He has he said thinks the word marriage should be reserved for a traditional heterosexual relationship. He has argued that the state’s civil unions law already protects the rights of gay and lesbian couples.
Nothing requires Lynch to sign the bill into law. He can let it take effect without his signature once it arrives on his desk.
If the governor is watching the polls to see what the electorate wants him to do, he should know that most support marriage equality. According to the Advocate:
The New Hampshire Freedom to Marry Coalition has released a poll showing that 55% of New Hampshire voters support marriage for lesbian and gay couples, while 39% are opposed. ...
The poll also found that 63% of Independent and 34% of Republican voters in New Hampshire support marriage for lesbian and gay couples. Only 32% responded yes to a question asking if they would be “bothered” if same-sex couples could get a marriage license.
This comes one day after marriage equality legislation in Maine won a key joint committee vote. The bill now advances to the full House and Senate, which may vote on it as soon as next week.
The history of America is one of constant improvement, as each generation reaches out to some who have been treated as a threatening “other” and at last recognizes “them” as part of “us.” It’s a beautiful thing.
People For the American Way Foundation's recent Right Wing Watch In Focus report documented the deceptive ways that Religious Right leaders blur the distinction between civil and religious marriage in order to convince Americans that marriage equality is a threat to religious liberty. Today's thrilling unanimous Iowa Supreme Court decision that it is unconstitutional to deny marriage to same-sex couples in the state included a powerful and respectful section on the same topic. Here's how it concludes:
In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution.
The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.