The rights of religious groups or individuals that object to same-sex
marriage continue to clash with those pursued by gay rights advocates.
Now, the fight that started at state ballot boxes and in courtrooms has
moved to floral shops, bakeries and photo studios.
As churches are concerned about the potential of facing lawsuits,
some are changing their bylaws to explicitly reflect their views on
traditional man-woman marriage.
A bakery in Gresham, Ore., owned by a Christian family, under
investigation by state officials for refusing to bake a wedding cake for
a lesbian couple, decided to close its doors.
“This fight is not over,”
they wrote on a sign in the shop window. “We will continue to stand
strong. Your Religious Freedom is becoming not Free anymore.”
Last month, the New Mexico Supreme Court ruled that photographers
could not refuse to shoot gay wedding ceremonies even though the state
does not officially recognize gay marriage.
The court ruled that
declining to photograph a gay wedding was similar to declining to work
at an interracial wedding, with Justice Richard Bosson saying, “There is
a price, one that we all have to pay somewhere in our civic life.”
Many of the legal skirmishes are not directly tied to federal
recognition of gay marriages after the Supreme Court’s decision striking
down most of the Defense of Marriage Act.
Instead, the fights largely
revolve around state and local anti-discrimination ordinances that
include protections for gays and lesbians.
Upcoming battles include whether religious opposition to same-sex
marriage constitutes discrimination on the basis of sexual orientation,
gender and/or marital status; and what happens when a discrimination
claim bumps up against an individual’s or institution’s religious
freedom.
Many cases are still being resolved:
*
The lawyer who represents the owners of a Colorado bakery say they
could face a year in prison for refusing to make a cake for a gay
wedding.
* A Kentucky county commission sided with a gay rights group in a
discrimination complaint last year after a Christian printer declined to
print T-shirts for a gay pride festival.
* A florist in Richland, Wash., who refused to provide flowers for a
same-sex wedding launched a countersuit against the state attorney
general, who sued her for violating the state’s Consumer Protection Act.
The Supreme Court’s decision against the Defense of Marriage Act
applies to federal benefits, but many have been watching to see whether
it holds further implications for religious groups or individuals.
For
instance, employers in states where gay marriage is legal will be
required to provide Family and Medical Leave Act leave to employers with
same-sex spouses, even if their state doesn’t recognize same-sex
marriage.
The Becket Fund for Religious Liberty, a Washington-based religious
freedom law firm, notes that since DOMA was enacted in 1996, six states
and Washington, D.C., have adopted same-sex marriage through the
legislative process with conscience protections for those with
objections to same-sex marriage.
Ahead of the court’s decision, the Becket Fund issued a brief on
areas where religious freedom could be impacted by the DOMA ruling,
outlining seven areas to watch:
Public accommodation laws
Many religious institutions provide services beyond their
congregations that are considered “public accommodation,” such as health
care, counseling, child care, education, wedding facilities and
adoption services.
For instance, New Jersey’s Supreme Court held that the Boy Scouts
organization, which does not permit gay leaders, is a place of “public
accommodation.”
Some fear that a lack of explicit conscience protections
could open the doors to lawsuits.
Housing discrimination laws
Courts in some states have required landlords to allow unmarried
cohabitating couples as tenants despite the landlords’ religious
objections. A federal recognition of marriage would give same-sex
couples a strong standing to access housing under anti-discrimination
laws.
In a 2001 case, a New York court sided with two lesbians, saying they
had a valid claim of discrimination after Yeshiva University declined
to provide housing benefits to unmarried couples.
Now that same-sex
marriage is legal in New York, a similar case could be considered
marital discrimination.
Employment discrimination laws
Currently, 21 states and the District of Columbia prohibit
discrimination on the basis of sexual orientation; most state laws
include an exemption for religious organizations.
A federal law to make
anti-gay discrimination illegal nationwide has lagged in Congress for 20
years.
Now the question is: If a gay man or lesbian is fired for being gay,
and that person’s marriage is now recognized by the federal government,
does anything change?
Does a federally recognized marriage offer greater
protection in discrimination claims?
After the District of Columbia legalized same-sex marriage, the
Catholic Archdiocese of Washington stopped offering spousal benefits to
any new employees.
Government facilities access
Access to government facilities, such as schools, parks and other
spaces, could become challenging for some who oppose same-sex marriage.
For instance, the Boy Scouts have lost leases to campgrounds, parks and a
government building headquarters and lost the right to participate in a
charitable payroll deduction program.
Public university student groups
could face scrutiny.
The University at Buffalo suspended an InterVarsity
Christian Fellowship group after it asked a gay member to step down as
treasurer.
Maintaining licenses or accreditation
As many governments would require all state marriages to be treated
equally, some worry about loss of licenses or accreditation.
Many cite
the case where Catholic Charities in Boston and San Francisco shut down
adoption services because the agencies refused to comply with
anti-discrimination laws and place children with same-sex couples.
Religious colleges and universities also fear loss of accreditation
if they oppose same-sex marriage.
The American Psychological Association
threatened in 2001 to revoke the accreditation of some religious
colleges, partly for “codes of conduct that prohibit sex outside of
marriage.”
It later decided to keep a religious exemption.
Government grants and contracts qualifications and tax exemptions
As many religious institutions seek grants and contracts for
services, some see a tension between providing services and receiving
government funding.
Illinois Catholic Charities shut down rather than
comply with a requirement that they can no longer receive state money if
they turn away same-sex couples for foster care or adoption.
Some are also concerned about the possibility of state or local tax
exemption challenges, or the ability to apply for government funding.
If
discrimination standards apply to sexual orientation, religious school
leaders fear they could be denied government programs, such as
scholarships and grants.
Educational and employment opportunities
The decision could continue to impact government workers and students at public universities.
Julea Ward, a master’s in counseling student at Eastern Michigan
University, told her professors that she could not help gay and lesbian
clients with their same-sex relationships.
She was expelled for
violating the school’s anti-discrimination policy and given $75,000 in a
settlement.
At least 12 Massachusetts justices of the peace have resigned because they declined to facilitate same-sex marriages.