Same-sex marriage supporters also point out that when individuals enter the commercial market as employers or sellers, their federal constitutional right of freedom of religion is significantly limited. So, for instance, if a catering hall hosts wedding receptions for opposite-sex couples, it must also do so for gays and lesbians.
Until now, almost all court decisions about same-sex marriage have involved the question of whether the state must recognize these marriages. The potential conflict between same-sex marriage and freedom of religion has not yet been presented squarely to the courts. Now that several states recognize these marriages, however, it is quite likely that, in the near future, courts will have to address the issue. For example, a state might deny financial benefits to a religious organization that discriminates against a member of a same-sex couple, and the organization might challenge that denial in a lawsuit against the state.
In such a case, the religious organization might raise religious freedom protections as a legal justification for its policies. In that situation, the courts would need to decide whether these protections trump anti-discrimination laws. Under current federal constitutional law, it would be difficult for a religious organization to prevail in such a case.
State constitutional law, however, might be more favorable toward a religious organization on this issue. The U. But some state constitutional and statutory provisions offer greater protection for religious conduct. How, so far, have state legislatures tried to balance the rights of married same-sex couples with the principle of freedom of religion? Although five states allow gay marriage, only Vermont, Connecticut and Maine actually have enacted laws recognizing the practice. In Massachusetts and Iowa, same-sex marriage was legalized as a result of a court decision and without any legislative enactments.
The Vermont law, enacted in early April , includes three specific provisions relating to freedom of religion.
The law recognizes that clergy have the right not to preside over same-sex marriages; that religious organizations have the right to refuse the use of their facilities to celebrate same-sex marriages; and that fraternal benefit societies, such as the Knights of Columbus, have the right to refuse to provide insurance benefits to the same-sex partners of their members if the organization has religious scruples against doing so.
The Connecticut law, also enacted in April , includes the same safeguards as the Vermont law.
- The Washington Post
The Maine law, enacted in May , contains two provisions related to freedom of religion. The precise meaning of this provision is unclear, but this law could offer significant protections for religious organizations that oppose same-sex marriage. The New Hampshire legislature is currently debating a gay marriage law that would likely combine some features of the Connecticut and Vermont laws. Like the Connecticut law, the New Hampshire bill would insulate religious organizations that oppose same-sex marriage — as well as their clergy and other employees — from any obligation to provide services that could contribute to the solemnization, celebration or promotion of gay marriage.
And like the recently enacted Vermont statute, the New Hampshire bill would protect the right of religiously affiliated fraternal benefit societies that oppose gay marriage, such as the Knights of Columbus, to exclude from membership people who are married to someone of the same sex.
It also would allow such benefit societies to deny insurance benefits to the same-sex spouses of members. Proposed legislation in New York contains a narrower protection for religious liberty. While this proposed law exempts those who are authorized to perform marriage ceremonies and who object to gay marriage from being required to solemnize such marriages, it does not address any other implications for religious organizations. In the future, is this conflict more likely to be played out at the federal level or the state level?
The most basic decisions will be made by the states because states rather than the federal government issue marriage licenses and are the primary sources of law related to marriage and divorce.
Gay marriage in play as 2004 issue
Thus, each state that legalizes same-sex marriage may create its own balance between marriage rights and freedom of religion. As of now, states have wide discretion under federal law about whether and how to recognize a legal status for same-sex couples. States have similarly wide discretion about whether to exempt religious organizations from certain rules of nondiscrimination. So, unless the U. Supreme Court steps into the picture, state courts are likely to be the primary legal venues on this issue. The federal government, however, also may play a significant role in the evolution of this conflict.
In , the U. Thus, even though Massachusetts, Connecticut, Iowa, Maine and Vermont now recognize same-sex couples who marry, the federal government does not treat these people as married. Proponents of same-sex marriage hope to see Congress repeal the Defense of Marriage Act.
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If Congress were to take steps in that direction, opponents of same-sex marriage would likely insist on some protection for religious liberty in that bill. Bush said, 38 states have so far passed laws similar to the federal statute. Kerry was one of 14 senators to vote against the law — a fact that is sure to be raised in the campaign, should he get the nomination.
Kerry said today. Kerry added: "While I believe marriage is between a man and a woman, for years, this has been a state issue.
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I believe the best way to protect gays and lesbians is through civil unions. I believe the issue of marriage should be left to the states, and that the president of the United States should be addressing the central challenges where he has failed: jobs, health care, and our leadership in the world.
Bush was not specific today about the wording he would like to see Congress adopt in beginning the constitutional-amendment process. He did not, for instance, mention legislation proposed by Representative Marilyn Musgrave, Republican of Colorado. Bush said the amendment he envisioned "should fully protect marriage while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.
Our government should respect every person and protect the institution of marriage. Bush's announcement came less than a day after he effectively kicked off his re-election campaign with a speech to the Republican Governors Association, where he defended his own record and ridiculed Mr. Kerry as a fence-straddler on many issues. The prospects for a constitutional amendment are by no means clear, especially in a year when many Washington lawmakers, along with their state counterparts, must run for re-election. But the depth of emotion and the seemingly unbridgeable gulfs of opinion on the issue became obvious in the hours after Mr.
Bush's announcement. The Rev. Louis P. Sheldon, chairman and founder of the Traditional Values Coalition, offered a similar opinion.
Sheldon said. But Anthony D. Romero, executive director of the American Civil Liberties Union, said, "President Bush's endorsement of this mean-spirited amendment shows that he is neither compassionate nor concerned with the rights of all Americans. Romero added: "Gays and lesbians are our neighbors, our co-workers, our friends. They serve as firefighters, police, doctors and professional athletes.
They laugh at the same jokes and worry about car payments and credit card debt.
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Amending the Constitution to deny them the same rights we all take for granted just isn't very American. Senator Edward M. Kennedy of Massachusetts said, "This nation has made too much progress in the ongoing battle for civil rights to take such an unjustified step backwards now.