The Tension Between Marriage Equality and Religious Liberty

Although an overwhelming majority of states still define marriage as the union of a man and a woman, there is little doubt that support for marriage equality ' recognition of the right of same-sex partners to marry as a matter of equal protection ' is on the rise. As recently as the beginning of summer 2011, only five states ' Massachusetts, Connecticut, Iowa, Vermont and New Hampshire ' had legalized same-sex marriage. Of those, only Vermont and New Hampshire had allowed same-sex marriage through legislation. Then, in less than a year, legislatures in four more states ' New York, Washington, New Jersey, and Maryland ' passed laws permitting same-sex marriage. During the same period, the Ninth Circuit ruled that Proposition 8, the 2008 California ballot initiative that deprived same-sex partners of the right to marry, was unconstitutional. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). And on May 9, 2012, Barack Obama became the first sitting U.S. President to support gay marriage, publicly announcing his view that “same-sex couples should be able to get married.”

Tension Remains

But even amid these signs of rising support, there remains a palpable tension between proponents of marriage equality and opponents who argue that same-sex marriage laws threaten their religious liberty. In one of the states where legislators recently passed a bill that would allow same-sex marriage, New Jersey, the governor quickly vetoed the bill, urging instead that the issue of gay marriage be put to a public referendum. In two other states,Washington and Maryland, the ink was barely dry on their same-sex marriage laws when movements were underway to place the gay marriage issue on a referendum ballot, seeking to overturn the legislation. (In California, supporters of Proposition 8, which would define marriage as a union between a man and a woman, also filed a petition to have the Ninth Circuit rehear the Perry case en banc. Failing to obtain relief on that petition, there is little doubt that they will look to have the Perry decision overturned by the U.S. Supreme Court, which would end the prospect of same-sex marriages in the nation's most populous state.)

The Religious Question

In each of the states that recently enacted same-sex marriage laws, including New York, legislators crafted exemptions for religious institutions to allay the concerns of those institutions and their adherents that the legalization of same-sex marriage would infringe on their religious liberty. The typical religious-liberty argument posits a danger that religious organizations will be subject to governmental intrusion ' in the form of civil liability, criminal penalties or loss of public accommodations ' if they refuse to solemnize a marriage antithetical to their beliefs. As a result, legislators have gone to great pains to include in same-sex marriage legislation provisions that relieve religious organizations and their officials of civil or criminal liability, and prohibit discrimination against them, for refusal to solemnize a gay marriage or to provide any of the other accommodations to same-sex partners called for by the law.

But given the gubernatorial veto in New Jersey and the moves for referenda in Washington and Maryland, the so-called “religious exceptions” clearly have done nothing to satisfy the institutions for which they were included in legislation. Even in New York, where there is no option for a referendum on the Marriage Equality Act (MEA) signed into law in 2011, religious leaders were quick to denounce the statute. The Catholic bishops of New York issued a statement on the day of the MEA's passage, declaring themselves “deeply disappointed” by the legislation and reaffirming the Church's teaching that “marriage is the joining of one man and one woman ' .” And the Bishop of Brooklyn expressed his belief that passage of the Act was “another 'nail in the coffin' of marriage ' .”

To these religious leaders, the exceptions inserted in the legislation after intense negotiations ' to ensure the protection of religious liberty to organizations that define marriage as the union of a man and a woman ' did not matter. Nor, it seems, do the religious exceptions in the Washington and Maryland laws matter to opponents seeking to overturn those laws on referenda. Rather than a true tension between marriage equality and religious liberty, then, it appears that the tension between supporters and opponents of same-sex marriage rests on a belief that government-sanctioned same-sex marriage and religion are simply incompatible. It is a classic case of irreconcilable differences.

'Collision Course'

The debate about whether the right of same-sex partners to marry can co-exist with the freedom of religious groups who define marriage as the union of a man and a woman is not a new one. Indeed, the debate was acknowledged when the Supreme Judicial Court of Massachusetts made that state the first to permit same-sex marriage, in Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003).

In Goodridge, the court addressed the concerns of religious groups, declaring that “[its] decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage.” Id. at 965 n.29. But in 2007, a skeptical author predicted that “[t]he movement for gay marriage [was] on a collision course with religious liberty.” Roger Severino, Or For Poorer? How Same-Sex Marriage Threatens Religious Freedom, 30 Harv. J.L. & Pub. Pol'y 939, 942 (2007). Among the consequences that the author forecasted would flow from legalizing same-sex marriage were “government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage.” Id. at 943.

It is concern over the predicted “collision course” between same-sex marriage rights and religious freedoms that New York legislators and that state's Governor, Andrew M. Cuomo, sought to allay by including religious exceptions in the bill that became the Marriage Equality Act. But the religious exceptions that were the source of so much contention have not entirely satisfied those on either side of the debate.

In the days following the MEA's passage in June 2011, a New York legal scholar ' who had wed his same-sex partner under Massachusetts law two years earlier ' welcomed the Act's passage, but opined that “[r]eligious exemptions allow marriage discrimination to continue” and that “to permit religious discrimination is to permit private discrimination.” Bennett Capers, Giving a Blessing to Bias, N.Y. Times, June 29, 2011, available at www.nytimes.com/roomfordebate/2011/06/29/are-religion-and-marriage-indivisible/same-sex-marriage-religious-bias-is-bias-period. Less than two weeks later, a newspaper editorial denounced the New York law's religious exceptions as falling “woefully short of protecting genuine exercise of religion for those who believe that marriage between a man and woman is the rational, civilized and divinely prescribed standard of sexual conduct.” Editorial, Deseret News, July 10, 2011, www. deseretnews.com/mobile/article/700150590/Editorial-Same-sex-marriage-and-the-peril-of-religious-exemptions.html.

The unhappiness on both sides is understandable, and will continue, as long as religious institutions argue the issue from the perspective of their right to religious liberty and gay marriage supporters argue from the perspective that same-sex couples are entitled to marry as a matter of equal protection. Viewed in this context, religious exceptions make little sense in a statute designed to afford citizens the equal protection guaranteed to them under the Constitution. On the other hand, such exemptions will inevitably be seen as insufficient by religious groups faced with a statute that declares that their beliefs are, in effect, unlawful.

As one legal author pointed out in 2010, “there is no legal justification for a religious exemption if the right to same-sex marriage is based in equality. At the same time, there are various and compelling non-legal arguments for the appreciation of religious liberty. In the end, we must decide whether equality must make room for liberty (and liberty for equality).” Marc D. Stern, Liberty v. Equality; Equality v. Liberty, 5 Nw. J. L. & Soc. Pol'y 307, 317 (2010). For now at least, states like New York, Washington, and Maryland ' joining Vermont and New Hampshire, which had earlier passed same-sex marriage legislation with religious exceptions ' are making an effort to see whether religious liberty can co-exist with the right of same-sex partners to enjoy the same array of legal benefits and protections that heterosexual married couples have enjoyed.

New York's Governor Cuomo, upon passage of that state's Marriage Equality Act, noted that the new law granted same-sex couples hundreds of rights, benefits, and protections that had been limited to married heterosexual couples. The statement was no exaggeration: In 2008 it was reported that New York state agencies' recognition of out-of-state same-sex marriages would implicate as many as 1,300 statutes and regulations, governing everything from the joint filing of income tax returns to the transfer of fishing licenses between spouses.

Freedom to Marry

In its 1967 landmark decision striking down state laws against interracial marriage, the U.S. Supreme Court noted that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and described marriage as “one of the basic civil rights of man, fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967) (internal quotations omitted). For more than 35 years after Loving, not a single state permitted partners of the same sex to exercise the “vital personal right” and “basic civil right” to marry, until Massachusetts' highest court legalized same-sex marriage in 2003. Nine years later, eight states and the District of Columbia now recognize the right of same-sex partners to enjoy the vital, basic and fundamental right to marry. But even with the progress that has been made ' and the unfettered survival of religious institutions in states where religious exceptions have been included in statutes legalizing gay marriage ' there remains a tension between proponents of marriage equality and those who believe that legalization of same-sex marriage is an encroachment upon their religious liberty.

This continuing tension, despite the inclusion in gay marriage laws of carefully crafted religious exceptions, begs the question: Is the opposition to same-sex marriage fueled by a genuine concern for religious liberty or by a refusal to acknowledge that civil same-sex marriage ' and the civil rights that come with it ' need have no more adverse impact on religious liberty than a government-issued marriage license has on the sanctity of a marriage between heterosexual partners solemnized by a priest or rabbi? If the debate is fueled by a genuine concern for religious liberty, the logical focus of opponents should be on improving the wording and expanding the scope of statutory religious exceptions. The focus should not be on preventing the passage of same-sex marriage laws altogether or ' less logical still ' on reversing such legislation after it is enacted.

Frank Gulino, a former appellate practitioner, is an Associate Professor of Legal Writing and Director of Student Advocacy Programs at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY. He is also the author of After Godfrey v. Spano: Is New York's High Court Ready to Recognize Out-of-State Same-Sex Marriages?, 82 N.Y. St. B. Ass'n J. 30 (May 2010), and A Match Made in Albany: The Uneasy Wedding of Marriage Equality and Religious Liberty, 84 N.Y. St. B. Ass'n J. 38 (Jan. 2012).

Although an overwhelming majority of states still define marriage as the union of a man and a woman, there is little doubt that support for marriage equality ' recognition of the right of same-sex partners to marry as a matter of equal protection ' is on the rise. As recently as the beginning of summer 2011, only five states ' Massachusetts, Connecticut, Iowa, Vermont and New Hampshire ' had legalized same-sex marriage. Of those, only Vermont and New Hampshire had allowed same-sex marriage through legislation. Then, in less than a year, legislatures in four more states ' New York, Washington, New Jersey, and Maryland ' passed laws permitting same-sex marriage. During the same period, the Ninth Circuit ruled that Proposition 8, the 2008 California ballot initiative that deprived same-sex partners of the right to marry, was unconstitutional. Perry v. Brown , 671 F.3d 1052 (9th Cir. 2012). And on May 9, 2012, Barack Obama became the first sitting U.S. President to support gay marriage, publicly announcing his view that “same-sex couples should be able to get married.”

Tension Remains

But even amid these signs of rising support, there remains a palpable tension between proponents of marriage equality and opponents who argue that same-sex marriage laws threaten their religious liberty. In one of the states where legislators recently passed a bill that would allow same-sex marriage, New Jersey, the governor quickly vetoed the bill, urging instead that the issue of gay marriage be put to a public referendum. In two other states,Washington and Maryland, the ink was barely dry on their same-sex marriage laws when movements were underway to place the gay marriage issue on a referendum ballot, seeking to overturn the legislation. (In California, supporters of Proposition 8, which would define marriage as a union between a man and a woman, also filed a petition to have the Ninth Circuit rehear the Perry case en banc. Failing to obtain relief on that petition, there is little doubt that they will look to have the Perry decision overturned by the U.S. Supreme Court, which would end the prospect of same-sex marriages in the nation's most populous state.)

The Religious Question

In each of the states that recently enacted same-sex marriage laws, including New York, legislators crafted exemptions for religious institutions to allay the concerns of those institutions and their adherents that the legalization of same-sex marriage would infringe on their religious liberty. The typical religious-liberty argument posits a danger that religious organizations will be subject to governmental intrusion ' in the form of civil liability, criminal penalties or loss of public accommodations ' if they refuse to solemnize a marriage antithetical to their beliefs. As a result, legislators have gone to great pains to include in same-sex marriage legislation provisions that relieve religious organizations and their officials of civil or criminal liability, and prohibit discrimination against them, for refusal to solemnize a gay marriage or to provide any of the other accommodations to same-sex partners called for by the law.

But given the gubernatorial veto in New Jersey and the moves for referenda in Washington and Maryland, the so-called “religious exceptions” clearly have done nothing to satisfy the institutions for which they were included in legislation. Even in New York, where there is no option for a referendum on the Marriage Equality Act (MEA) signed into law in 2011, religious leaders were quick to denounce the statute. The Catholic bishops of New York issued a statement on the day of the MEA's passage, declaring themselves “deeply disappointed” by the legislation and reaffirming the Church's teaching that “marriage is the joining of one man and one woman ' .” And the Bishop of Brooklyn expressed his belief that passage of the Act was “another 'nail in the coffin' of marriage ' .”

To these religious leaders, the exceptions inserted in the legislation after intense negotiations ' to ensure the protection of religious liberty to organizations that define marriage as the union of a man and a woman ' did not matter. Nor, it seems, do the religious exceptions in the Washington and Maryland laws matter to opponents seeking to overturn those laws on referenda. Rather than a true tension between marriage equality and religious liberty, then, it appears that the tension between supporters and opponents of same-sex marriage rests on a belief that government-sanctioned same-sex marriage and religion are simply incompatible. It is a classic case of irreconcilable differences.

'Collision Course'

The debate about whether the right of same-sex partners to marry can co-exist with the freedom of religious groups who define marriage as the union of a man and a woman is not a new one. Indeed, the debate was acknowledged when the Supreme Judicial Court of Massachusetts made that state the first to permit same-sex marriage, in Goodridge v. Department of Public Health , 798 N.E.2d 941 (2003).

In Goodridge, the court addressed the concerns of religious groups, declaring that “[its] decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage.” Id. at 965 n.29. But in 2007, a skeptical author predicted that “[t]he movement for gay marriage [was] on a collision course with religious liberty.” Roger Severino, Or For Poorer? How Same-Sex Marriage Threatens Religious Freedom, 30 Harv. J.L. & Pub. Pol'y 939, 942 (2007). Among the consequences that the author forecasted would flow from legalizing same-sex marriage were “government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage.” Id. at 943.

It is concern over the predicted “collision course” between same-sex marriage rights and religious freedoms that New York legislators and that state's Governor, Andrew M. Cuomo, sought to allay by including religious exceptions in the bill that became the Marriage Equality Act. But the religious exceptions that were the source of so much contention have not entirely satisfied those on either side of the debate.

In the days following the MEA's passage in June 2011, a New York legal scholar ' who had wed his same-sex partner under Massachusetts law two years earlier ' welcomed the Act's passage, but opined that “[r]eligious exemptions allow marriage discrimination to continue” and that “to permit religious discrimination is to permit private discrimination.” Bennett Capers, Giving a Blessing to Bias, N.Y. Times, June 29, 2011, available at www.nytimes.com/roomfordebate/2011/06/29/are-religion-and-marriage-indivisible/same-sex-marriage-religious-bias-is-bias-period. Less than two weeks later, a newspaper editorial denounced the New York law's religious exceptions as falling “woefully short of protecting genuine exercise of religion for those who believe that marriage between a man and woman is the rational, civilized and divinely prescribed standard of sexual conduct.” Editorial, Deseret News, July 10, 2011, www. deseretnews.com/mobile/article/700150590/Editorial-Same-sex-marriage-and-the-peril-of-religious-exemptions.html.

The unhappiness on both sides is understandable, and will continue, as long as religious institutions argue the issue from the perspective of their right to religious liberty and gay marriage supporters argue from the perspective that same-sex couples are entitled to marry as a matter of equal protection. Viewed in this context, religious exceptions make little sense in a statute designed to afford citizens the equal protection guaranteed to them under the Constitution. On the other hand, such exemptions will inevitably be seen as insufficient by religious groups faced with a statute that declares that their beliefs are, in effect, unlawful.

As one legal author pointed out in 2010, “there is no legal justification for a religious exemption if the right to same-sex marriage is based in equality. At the same time, there are various and compelling non-legal arguments for the appreciation of religious liberty. In the end, we must decide whether equality must make room for liberty (and liberty for equality).” Marc D. Stern, Liberty v. Equality; Equality v. Liberty, 5 Nw. J. L. & Soc. Pol'y 307, 317 (2010). For now at least, states like New York, Washington, and Maryland ' joining Vermont and New Hampshire, which had earlier passed same-sex marriage legislation with religious exceptions ' are making an effort to see whether religious liberty can co-exist with the right of same-sex partners to enjoy the same array of legal benefits and protections that heterosexual married couples have enjoyed.

New York's Governor Cuomo, upon passage of that state's Marriage Equality Act, noted that the new law granted same-sex couples hundreds of rights, benefits, and protections that had been limited to married heterosexual couples. The statement was no exaggeration: In 2008 it was reported that New York state agencies' recognition of out-of-state same-sex marriages would implicate as many as 1,300 statutes and regulations, governing everything from the joint filing of income tax returns to the transfer of fishing licenses between spouses.

Freedom to Marry

In its 1967 landmark decision striking down state laws against interracial marriage, the U.S. Supreme Court noted that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” and described marriage as “one of the basic civil rights of man, fundamental to our very existence and survival.” Loving v. Virginia , 388 U.S. 1, 12 (1967) (internal quotations omitted). For more than 35 years after Loving, not a single state permitted partners of the same sex to exercise the “vital personal right” and “basic civil right” to marry, until Massachusetts' highest court legalized same-sex marriage in 2003. Nine years later, eight states and the District of Columbia now recognize the right of same-sex partners to enjoy the vital, basic and fundamental right to marry. But even with the progress that has been made ' and the unfettered survival of religious institutions in states where religious exceptions have been included in statutes legalizing gay marriage ' there remains a tension between proponents of marriage equality and those who believe that legalization of same-sex marriage is an encroachment upon their religious liberty.

This continuing tension, despite the inclusion in gay marriage laws of carefully crafted religious exceptions, begs the question: Is the opposition to same-sex marriage fueled by a genuine concern for religious liberty or by a refusal to acknowledge that civil same-sex marriage ' and the civil rights that come with it ' need have no more adverse impact on religious liberty than a government-issued marriage license has on the sanctity of a marriage between heterosexual partners solemnized by a priest or rabbi? If the debate is fueled by a genuine concern for religious liberty, the logical focus of opponents should be on improving the wording and expanding the scope of statutory religious exceptions. The focus should not be on preventing the passage of same-sex marriage laws altogether or ' less logical still ' on reversing such legislation after it is enacted.

Frank Gulino, a former appellate practitioner, is an Associate Professor of Legal Writing and Director of Student Advocacy Programs at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY. He is also the author of After Godfrey v. Spano: Is New York's High Court Ready to Recognize Out-of-State Same-Sex Marriages?, 82 N.Y. St. B. Ass'n J. 30 (May 2010), and A Match Made in Albany: The Uneasy Wedding of Marriage Equality and Religious Liberty, 84 N.Y. St. B. Ass'n J. 38 (Jan. 2012).