SALT LAKE CITY, UTAH – If you’re worried that government someday will force your minister, rabbi, imam or bishop to perform a same-sex marriage, don’t be. Even if such weddings become legally enshrined and widely accepted in the United States, gay couples never will be sealed, for instance, in an LDS temple unless the church chooses to do so.
That’s the consensus of religious-liberty experts across the nation. Even so, wild rhetoric on both sides of the same-sex-marriage debate persists, overshadowing real concerns arising out of the tension between religious belief and gay civil rights. And the conflicts are not likely to evaporate anytime soon.
Although 30 states, including Utah, constitutionally bar gay marriages, the drive for same-sex unions is gaining momentum. Five states currently allow it (a sixth will join them in January) and the issue is on the ballot next month in three. Maine represents an important bellwether. It already has a legal provision for gay marriage, but that is being challenged by a ballot measure.
Meanwhile, many conservative religious groups are lining up either to oppose gay marriage or to ask for religious exemptions.
“There is a battle over the meaning of [religious] freedom,” LDS apostle Dallin H. Oaks said in a strongly worded address last week to students at Brigham Young University-Idaho. “The contest is of eternal importance, and it is your generation that must understand the issues and make the efforts to prevail.”
In Oaks’ view, opponents of California’s Proposition 8, which barred same-sex marriages in that state, not only defended their rights but also tried to intimidate Mormons into silence with boycotts and harassment. The Mormon leader, a former Utah Supreme Court justice, started a firestorm of criticism by suggesting that such tactics were similar in their effect, though not degree, to the voter intimidation of blacks in the South during the fight for civil rights. But he also made it clear that the LDS Church will not be deterred from entering the political arena when it feels a moral issue is at stake.
“We will continue to teach what our Heavenly Father commanded us to teach,” Oaks said, “and trust that the precious free exercise of religion remains strong enough to guarantee our right to exercise this most basic freedom.” Some of Oaks’ fears are overblown, but others are credible, says Charles Haynes, a religious-liberty scholar at the First Amendment Center in Washington, D.C.
“There is no question that there will be many points of contention as the gay-marriage battle continues,” Haynes says. “It’s an important conversation to have now to get ahead of the growing tensions.”
Beyond the pulpit
Religious conservatives point with alarm to strictures imposed on ministers in Canada and Sweden who can be found guilty of hate speech if they preach that homosexual behavior is a sin.
It’s only a matter of time, they warn, until U.S. clerics are censored and punished. Some conservatives worry that Congress’ newly passed hate-crimes protections for gays could muzzle clergy. Others fear churches could lose their tax-exempt status.
That’s not going to happen here, Haynes says. What they forget is that in many European countries, religions are state-sponsored. America was created to separate church and state.
“We have a strong First Amendment,” Haynes says, “and a tradition of protecting religious speech.” Instead of the pulpit, the conflicts likely will arise outside the cathedrals, temples, mosques and synagogues.
Churches still will be able to exclude gays from certain rites on the basis of their theology, for example, but many religiously affiliated businesses or individuals may not be. Several cases already have underscored religious fears, according to Robin Fretwell Wilson, a legal scholar at the Washington and Lee University School of Law in Virginia and co-editor of a 2008 book of essays, Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Wilson points to the following:
» The Ocean Grove Camp Meeting Association, owned by a Methodist church in New Jersey, rented out its beachside pavilion to various groups. The church declined to allow a lesbian couple to use the pavilion for their civil-union ceremony. Local authorities stripped the association of its exemption from property taxes and billed it $20,000.
» The Salvation Army lost $3.5 million in social-service contracts with San Francisco because it refused, on religious grounds, to provide benefits to same-sex partners of its employees.
» Catholic Charities of Maine was forced to either extend employee benefits to registered same-sex couples or lose eligibility to all city housing and development funds.
» A pair of Christians who co-own Elaine Photography in New Mexico refused to take photos for a lesbian commitment ceremony. The lesbian couple filed a complaint with New Mexico’s Human Rights Commission, which found the photographers guilty of discrimination and levied a $6,000 fine. To head off looming lawsuits, religious-liberty experts suggest writing religious exemptions for individuals and religiously connected businesses into same-sex-marriage laws.
Wilson was among four law professors who recently wrote to Maine’s Gov. John Baldacci, proposing that solution in his state.
“Crafting robust religious-liberty accommodations to Maine’s same-sex-marriage law will ensure that same-sex marriage does not constrain the fundamental right of religious liberty,” the Oct. 5 letter said. “It would also go a long way to bringing much needed civil discourse to the debate over Question 1 [the ballot measure].”
Classroom clashes
Perhaps the most emotion-packed issue is what to teach children. A Massachusetts case became a rallying cry for Prop 8 proponents and is being used again in the publicity surrounding Maine’s ballot measure. Robb and Robin Wirthlin, an LDS couple in Lexington, Mass., were horrified to learn that their son’s second-grade teacher read aloud a fairy tale, called King and King, about a prince who falls in love with and marries another prince. When the Wirthlins objected, they were told the school had no obligation to give them notice so their son could opt out.
Such situations are likely to multiply as same-sex-marriage laws are passed. “Children are likely to encounter textbooks and other educational materials in which same-sex marriages are portrayed as a normal and unexceptional part of society,” says Fred Gedicks, who teaches law at LDS Church-owned Brigham Young University.
“That will make it more difficult for those who oppose same-sex marriages to teach their children conservative values, especially in school districts that are not sensitive to parental rights by allowing them to opt out of certain activities or parts of the curriculum.”
The question is, he says, should this conflict be resolved by strong exemptions for parents or by disallowing same-sex unions altogether? Nathan Oman, a Mormon who teaches law at William and Mary Law School, argues it may be too late to stop same-sex marriage with constitutional amendments.
“If gay marriage is going to come, you’d rather it came through legislation than adjudication,” Oman says. “If same-sex marriage is constitutionally required, deciding what sort of exemptions will be allowed puts you at the mercy of the courts. If that right is in a statute, you can write it in such a way to maintain exemptions.”
Playing nice
In his Oct. 13 speech, Oaks condemned post-Prop 8 tactics used against supporters, particularly Mormons. Many others also acknowledge that some of the efforts went too far.
“The anti-Prop 8 ad that depicted Mormon missionaries barging into the home of a lesbian couple, seizing wedding rings from the women and ransacking the house was way over the line,” Haynes says. “Although the post-election protests at Mormon churches were mostly peaceful, there were incidents of vandals defacing church buildings and protesters hurling insults at Mormons. And letters filled with white powder were sent to Mormon temples in Los Angeles and Salt Lake City [which fortunately turned out to be a nontoxic substance].”
The “good news,” he says, “is that many gay-marriage supporters criticized these tactics as both wrong and counterproductive.”
Fostering civil dialogue is precisely what Utah’s ACLU has been trying to do by staging panel discussions on same-sex marriage at Salt Lake Community College and Utah Valley University.
Audience members share some of the horror stories they have heard about what will happen if same-sex marriage becomes the law, and panelists try to clarify the real issues.
“Any conflicts between religious liberty and gay rights are very unusual,” says Cliff Rosky, a law professor at the University of Utah and a member of Equality Utah’s board who joins Gedicks on the panel. “They can be managed with common sense and mutual respect.”
Haynes agrees.
“I wish the language used could help people hear one another rather than revving up their own constituents. Extremes on both sides make that dialogue difficult,” he says. “We still have to live and work together.” Haynes hopes that in the half of the country where same-sex marriage soon is going to be legal, people of deep religious faith can be protected in their conscience and in the half of the country where gay marriage is prohibited, religious people will recognize and guarantee the legal rights of gays.
“Everyone is in a minority somewhere,” Haynes says. “If anyone should understand that, it should be the Mormons.”
from The Salt Lake Tribune
28
Oct
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