Tuesday, July 5, 2011

Marriage Equality - The Coming Clash of Civil and Religious Liberties (Louisville, KY Church Speaks)

This article was published in Time Magazine:

What does the historic vote on same-sex marriage in New York mean for the rest of the country? Will it play a role if and when the U.S. Supreme Court rules on the California case? Will it propel or impede efforts in other states to legalize gay marriage?

Vows will be said in New York long before those questions find answers, but what can be said for sure is that the New York legislation will nationalize the gay marriage debate in a way that no other step in the long campaign has.

No matter that New York is the largest state in the U.S. to hold that the union of a man and a man or a woman and a woman is equal to that of a man and a woman. California, the largest state in the U.S., held that distinction for a few months, until electoral and judicial jiujitsu tied same-sex marriage up in knots there. (story)

"The New York vote marks a particular and important shift in the political landscape around same-sex marriage," adds Professor Marc Spindelman of the Ohio State University law school, who has followed gay marriage's serpentine legal path for years.

And Al Mohler, president of the Southern Baptist Theological Seminary in Louisville, Ky., told TIME that New York's impact on the rest of the country can't be overstated. "The New York vote is massively important — perhaps even pivotal," he said. "This is due, not only to the size of the state's population, but to the political process by which the Governor and leading Republicans pushed this through the New York Senate. We should expect these same tactics to appear elsewhere."

In one sense, the most immediate impact of the New York legislation, beyond the obvious fact that more gays will now marry, is the way the 10 days of political wrangling in Albany came to a head over nearly intractable issues of religious liberty. While Chemerinsky told TIME that the furor was in some ways overblown — "No religion has to marry anyone it does not want to marry. I think that this was a misleading argument," he says — other scholars who have followed the debate for years say there's no denying that expanding gay rights so quickly has created real tensions between laws protecting the freedom of conscience and the newer protections for gays and lesbians.

Gay marriage isn't the first issue to do so, but it's likely to be the most fought over. No one is arguing that the Catholic Church, or any church, must marry a gay couple — and the protections written into law in New York saying so were probably redundant. But the New York law went further than merely restating the constitutionally obvious. It also wrote into law the right for all religious institutions — hospitals, adoption services — and so-called benevolent organizations to refuse to not just marry gay couples but the right to refuse accommodating their weddings, too. For gay couples in New York, good luck finding a Knight of Columbus hall to rent, for instance.

Some saw the religious-based objections to gay marriage as mere pretext for deeper, and harder to express public antipathy towards homosexuality. And others, like Mohler, see the provisions as mere fig leaves for defecting conservatives who wanted cover for their votes n favor of marriage. But whatever their political uses, the religious protections point to one aspect of the New York vote that will resonate throughout the country as the issue advances elsewhere.

"There is certainly a religious liberty issue," Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, told TIME after the New York vote. And it's not just a question for the prelates of the world who might bristle at the idea of the state ordering up gay marriage, a prospect that sent Archbishop Timothy Dolan of New York City into rhetorical overdrive in the days leading up to the vote. Individuals who deeply oppose gay marriage could find themselves pushed to participate in ways big and small — and for that reason the protections in the New York law could become important.

"The 'guy who runs the tuxedo shop' is trying to live his life in accordance with his most deeply held ideals, which is just what gay couples are trying to do," Koppleman says. "The fairly mild religious accommodations in New York law will somewhat ease conflicts of that sort, in a way that is unlikely to significantly injure any gay people."

Mohler worries that the New York law's religious liberty protections will almost certainly be challenged by gay couples who see a tuxedo shop's owners refusal to do business with them as deeply insulting. "These issues are inevitable, given the complicated and inevitable interface of religious conviction and the institution of marriage. It is hard to see how the accommodation put together in the New York legislation can stand, given the direction of the courts."

New York Law School professor Arthur Leonard, who has edited the widely cited "Lesbian/Gay Law Notes" for 31 years, is more hopeful than Mohler. But he, too, agrees that the provisions in the New York law run the risk of setting up a collision course in the courts. "You need to understand the history on this. There have been disputes, mainly about Catholic adoption agencies refusing to provide adoption services for same-sex couples, and a few other disputes around the country, that provide the fuel for these demands for religious protections," he told TIME.

"The language is ambiguous enough to mean that it may take a court to determine when the religious liberty interests prevail against the right of gay couples to arrange their weddings," says Leonard. But he said the bill contains a "poison pill provision" that means if the religious liberties clauses are struck, the bill itself is invalidated. "So the bill potentially gives a wide range of religiously-affiliated entities license to discriminate against married same-sex couples. I am hopeful that administrators at Catholic hospitals, for example, will be wise enough and compassionate enough avoid the temptation to discriminate against same-sex spouses of patients, which would preclude the need to litigate the matter."


Kommers says he still favors finding a way out of the inevitable clashes of conscience that he says legalizing gay marriage will bring about. He would reserve marriage for opposite-sex couples but would create civil partnerships to allow all sorts of couples, including gay couples but also unmarried siblings or aging friends, to arrange their lives as they see fit and for those unions to be given the same legal benefits as married couples.

But for now, momentum is in the other direction. "The New York vote reframes legislative debates on lesbian and gay rights across the country, including in states that have yet to provide even the most minimal sort of anti-discrimination protections for lesbians and gay men and their families," Spindelman told TIME. "Legislative reluctance to enact basic civil rights protections that others can take for granted — or do not need — looks increasingly ideological and out of date, a throwback to another era. The New York vote is a bright arrow pointed toward the future — a future that many welcome, but that others, of course, continue to perceive with something more akin to dread."

Count Mohler in the latter group. For him, the country has been down this divisive path before — and it's nothing to look forward to. "It now appears that the nation is moving in the direction of a divided map on the issue of marriage," he told TIME. "I predict that this map might look much like the map of the U.S. on legalized abortion prior to Roe v. Wade." If he is right, then we may be fighting over gay marriage 40 years from now, no matter how the Supreme Court rules should it ever hear the California case.

Read more: http://www.time.com/time/nation/article/0,8599,2080804,00.html#ixzz1RFKPk1oz

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