Same Sex Marriage and Religious Freedom at the Rhode Island Senate Today

This afternoon, the Rhode Island Senate Judiciary Committee will hear two same-sex marriage bills, S0708 which would put the question to a Constitutional voter referendum in 2014, and S0038 which would directly authorize same-sex marriage by statute. In terms of the guarantees of "protection of religious freedom in marriage", the bills are polar opposites. The referendum bill would create one of the most expansive religious freedom protection regimes associated with same-sex marriage in the country, covering not only religious organizations, but also non-religiously affiliated "small businesses". In contrast, both the House and Senate statutory authorization bills would create one of the nation's weakest freedom of religion in marriage regimes.

To begin, let's note that the Senate Bill directly authorizing same-sex marriage, S0038, as submitted, is an improvement over the version already passed by the House (H5015). The House bill would make Rhode Island the only state in the US to put conditions into an SSM law that religious organizations must meet in order to keep control over their religious doctrine...

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, 15-1-4 and 15-1-5.

Civil law conditions for keeping exclusive control of religious teachings are quite the radical departure from any concept of "separation of church and state". S0038, on the other hand (if it doesn't get amended), lists no conditions that must be met, stating simply...

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.

The above language would place Rhode Island with a minority of same-sex marriage states, along with New Hampshire and Maryland, that make overt declarations about religious institutions retaining exclusive control of their own doctrine, as the SSM statutes enacted by most other states include no such statement. This implies one of two things; either the idea that exclusive control of religious doctrine belongs to religious organizations was in most places considered self-evident OR these other states are reserving the right to set limits on the "exclusive control" that religious organizations have over their doctrines.

With those options in mind, consider what Rhode Island's same-sex marriage advocates are calling strong protection, the language above and a second religious freedom clause in the proposed law...

(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.

If this section were to be stripped from the bill, either before being passed into law or at some future time, what would be different?

In the best-case scenario, the answer is nothing, i.e. nothing changes because Constitutional "separation of church and state" already prevents the state from ordering clergy to perform any religious actions -- implying, in turn, that the religious freedom sections in S0038/H5105 are only meaningful the event of a worse-case, where government has assumed a power to direct clergypeople in certain of their actions so long as there is no law saying it can't.

A number of same-sex marriage advocates in Rhode Island have actively opposed extending freedom of religion protections further than control of church doctrine and the activities of clergy, even though that is what most other states that have legalized SSM have done, i.e. expressly state that religious organizations, defined more broadly than houses of worship alone, cannot be legally required to participate in the solemnization, celebration, or promotion of marriage[s] that violate their religious beliefs. For example, a Projo op-ed written by Roger Williams Law Professor Leah Donaldson and promoted by Rhode Islander's United for Marriage took the position that...

H.B. 5015 already offers strong protections for those churches, clergy and religious organizations that have religious objections to marriage equality. Professor Wilson also neglects to mention the various exemptions for religious organizations that currently exist in Rhode Island law. Rhode Island’s anti-discrimination laws already state that they do not “impose any duty on a religious organization.” Additionally, Rhode Island’s Religious Freedom Restoration Act protects Rhode Islanders’ religious liberty to an even greater degree than the U.S. Constitution. While many could disagree that such broad exemptions are good policy, these issues are already addressed in Rhode Island’s General Laws, and nothing in H.B. 5015 would change religious protections.

However, it makes little sense to argue that a reaffirmation of what (we hope) is already certain, that clergy cannot be ordered to perform marriages by government is an important factor in the Rhode Island same-sex marriage bill, while simultaneously arguing that a clarification of something more ambiguous, services provided by religious organizations related to marriage celebrations, is wholly unnecessary.

To use the canonical example, even if you believe that the proposed SSM law in conjunction with existing Rhode Island law obviously disallows a lawsuit against a Knights of Columbus hall which refuses to host a same-sex wedding reception, clarifying this in the new law would be no different from reaffirming that the government cannot order clergy to perform marriages. Since the law is being rewritten anyway, no substantial burden is imposed by incorporating one more set of changes making clear that a Knights of Columbus facility cannot be sued over this issue -- if that is the outcome that is desired.