Make Sure One set of Rights doesn’t trump Another
We hear a lot of the rights-based arguments being made in favor of same-sex marriage hereabouts, including the call to RI Founder Roger Williams and the “separation of church and state”. The arguments for religious liberty have seemed muted in the coverage of the debate. In today’s ProJo, Professor Robin Wilson (co-editor of the book Same-Sex Marriage and Religious Liberty: Emerging Conflicts) explains how RI’s proposed gay marriage laws do a bad job of ensuring religious liberty, stating, “Every other state law authorizing same-sex marriage provides more protection…” He also explains that, to his mind, religious exemptions would go a long way towards a compromise solution:
Exemptions provide a middle way, respecting both the interests of same-sex couples and religious liberty. By avoiding a winner-takes-all outcome, exemptions turn down the temperature on a contentious issue.
Exemptions also serve the interests of same-sex marriage supporters by taking a powerful argument against same-sex marriage away from opponents.
He gives examples of such exemptions contained in other same-sex marriage laws:
• a religiously affiliated group that owns a reception hall limit its space to celebrating only traditional marriages when to do otherwise would violate their religious tenets, a basic protection provided by every same-sex marriage statute outside Rhode Island.
• a religiously affiliated adoption agency place children only with heterosexual married couples so long as they don’t receive government support, as Connecticut did.
• religiously affiliated fraternal organizations, such as the Knights of Columbus, limit insurance coverage to spouses in traditional marriages, as Connecticut and Vermont allow.
• a religiously affiliated organization extend spousal benefits only to individuals in marriages recognized by its faith, as New Hampshire, Connecticut, and Vermont have all done….
Without specific protections, religious organizations that step aside from celebrating same-sex marriages may be subject to private lawsuits under laws prohibiting discrimination on the basis of sexual orientation or marital status. And these organizations may face stiff penalties from the government.
In addition to such institutional safeguards, Wilson explains that protections for religious individuals–in the spirit of Roger Williams–should also be included:
As broad as the exemptions enacted elsewhere are, they leave out much-needed protections for individuals. Judges, justices of the peace, marriage-license clerks, and individuals in ordinary commerce — bakers, photographers, caterers — who prefer for religious reasons to step aside from same-sex marriages should be allowed to do so when no hardship will result to same-sex couples.
I don’t think that sincere religious opponents to same-sex marriage will be mollified by such pragmatic compromises, however. But politicians might.