The Hollow Religious Protection in Rhode Island's Proposed Same-Sex Marriage Law

The "protection of freedom of religion" in the same-sex marriage bill introduced into the Rhode Island House by Representative Arthur Handy (D - Cranston) is extremely narrow. As it currently stands, the text reads...

15-3-6.1. Protection of freedom of religion in marriage (a) Consistent with the guarantees of freedom of religion set forth by both the First Amendment to the United States constitution and article I, section 3 of the Rhode Island constitution, each religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within their faith, and on what terms, as long as such policies are consistent with sections 15-1-2, 15-1-3 and 15-1-4. No court or other state or local governmental body, entity, agency or commission shall compel, prevent, or interfere in any way with any religious institution’s decisions about marriage eligibility within that particular faith’s tradition.

(b) Consistent with the guarantees of freedom of religion set forth by both the first amendment to the United States constitution and article I, section 3 of 1 the Rhode Island constitution, no regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination as described and authorized in sections 15-3-5 and 15-3-6 of the general laws to officiate at a civil marriage, is required to solemnize any marriage. A regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination shall be immune from any civil claim or cause of action based on a refusal to solemnize any marriage under this chapter. No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any church or religious denomination on the refusal of a person associated with such church or religious denomination to solemnize a marriage under this chapter.

The meaningfulness of these provisions can be judged by the following test: Suppose 15-3-6.1 (a) and (b) were to be repealed by a future legislature, while everything else in the proposed law remained in place. In the absence of those two sections, would the state then be able to set "doctrine, policy, and teachings regarding who may marry" for religious institutions (part a), and could churches or religious denominations who refuse to perform same-sex marriages be sued in civil court (part b)? I think there is a pretty broad consensus that this would not be the case (or am I wrong on this?).

By definition, an "exemption" that changes nothing if absent is not an exemption.

Rhode Island's current civil unions law contains much broader protection for conscience and religious organizations, which Rep. Handy's bill would repeal...

15-3.1-5. Conscience and religious organizations protected (a) Notwithstanding any other provision of law to the contrary, no religious or denominational organization, no organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:

(1) To provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization, certification, or celebration of any civil union; or

(2) To solemnize or certify any civil union; or

(3) To treat as valid 1 any civil union; if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs. (b) No organization or individual as described in subsection (a) above who fails or refuses to provide, solemnize, certify, or treat as valid, as described in subdivision (a)(1), (a)(2) or (a)(3) above, persons in a civil union, shall be subject to a fine, penalty, or other cause of action for such failure or refusal.

Maintaining a suitable analog to this provision would place a Rhode Island same-sex marriage law very much in line with the laws passed in most of the other New England states (Maine is the exception) and New York. Replacing the existing provision with the proposed one would open the question of whether the new language simply affirms basic constitutional principles without changing their scope, or whether it implies that there are issues of religious doctrine, policy, and teaching outside of marriage that are not off-limits to some form of state control.

The various religious exemption sections of the same-sex marriage laws from Rhode Island's neighbors can be viewed in the post immediately below.