Religious Freedom Not at Stake

By Sam Wolfe (also published at Affirmation.org)
This week could see the resolution of decades of battles over marriage equality in Hawaii. The legislative votes appear sufficient for passage of the Hawaii Marriage Equality Act, and the governor is poised to endorse the law.

Meanwhile, LDS Church leaders in Hawaii issued a second letter last week underscoring opposition to marriage equality because “marriage of a man and a woman is essential to the well-being of children, families, and society,” — and citing concern over “inadequate” safeguards for “constitutionally guaranteed religious freedoms” that an earlier letter indicated as a risk of “religious organizations and officials” being “required to support or perform same-sex marriages or from having to host same-sex marriages or celebrations in their facilities” as well as a need to protect “individuals and small businesses from being required to assist in promoting or celebrating same-sex marriages.”

But the current legislation assures what the First Amendment already secures: No church or religious leader will be required to host or perform a wedding that offends their beliefs; except that all businesses, including churches that provide facilities for marriage celebrations to the general public and for profit, remain subject to Hawaii’s public accommodations law, which has been in place since 2006. That law already applies to civil unions which provide marriage equivalency under Hawaii state law since January 2012; yet the sky has not fallen. Marriage equality is becoming the norm and similarly dire forecasts, such as in California, of loss of freedom ensuing from marriage equality, simply has not occurred. Instead, freedom is increased for those who are able to marry.

Hawaii’s public accommodations law will continue, as is common, to mean that merchants, hotels, restaurants, and the like may not refuse patrons because of protected characteristics, including sexual orientation. That is as it should be, for if an exemption were allowed for public discrimination to anyone who has an unfavorable view of a lesbian or gay person, then the exception would swallow the rule. You can operate a hotel that serves alcohol while maintaining a belief against drinking; you can be a caterer for a wedding while preferring heterosexual marriage.

What teaching of Jesus justifies creating a legal license to treat some people worse than others even unto turning them away out of dislike of who they are or who they love when we’re taught the Golden Rule, a recognition that each person is created in the image of God?

When marriage is won in Hawaii, the churches will continue meeting, their members will continue marrying and having children. There is no risk of being forced to perform same-sex marriages. There will be no newfangled restriction on doctrine or what may be preached. Churches will remain in full control of standards of membership. Nothing will change legally for heterosexual churchgoers once same-sex couples marry.

As legal equality for LGBT people advances, there is in tandem a growing awareness of room in our communities, and islands, for marriages of all who get engaged; that “our families” include individuals of differing sexual orientations as do our churches; sexual orientation is core to who we are; and we each have differing gifts, roles, and opportunities in life that for every single one of us may not include heterosexual marriage — and that’s okay.

Sam Wolfe is a member of the Affirmation Board and a civil rights attorney for the Southern Poverty Law Center.

4 comments for “Religious Freedom Not at Stake

  1. DTR
    November 15, 2013 at 11:58 am

    Sam-

    Religious freedom is indeed at stake in the drive for marriage equality, just not in the way most people expect. As you have correctly pointed out, there is zero probability that armed federal marshals will escort a gay couple to the gates of a Mormon temple and compel a sealer to perform their marriage. It is telling that both proponents and opponents of marriage equality tend to focus on this outlandish scenario, while ignoring a host of much more likely (and predictable) religious freedom conflicts that will arise if and when gay marriage joins interracial marriage as a constitutionally protected right.

    In 2008, just before the California Supreme Court kicked off a momentous year for the marriage equality movement, a group of legal scholars published a book of essays exploring the possible ways same-sex marriage could impact religious liberty. Most of the authors were in favor of marriage equality, but honestly foresaw that religious entities that did not embrace gay marriage could be impacted as laws were changed by judicial or legislative means. Especially with respect to laws relating to housing and employment, conflict will almost certainly arise when these laws are applied not just to churches, but also to religiously affiliated schools, hospitals, and social service providers.

    In the Mormon context, I think universities will be ground zero for these conflicts. BYU will come under increasing scrutiny from its accrediting body, as well as from governmental housing and education bureaucracies. I also think employment will be a tough one: can Deseret Book (or Beehive Clothing, or BYU) lawfully dismiss an employee upon discovering that employee is in a same-sex marriage? Whether you think the answer ought to be yes or no, religious freedom is at stake. How religious freedom is to be balanced against competing concerns is an important issue to address. But it is not helpful to pretend that no balancing will be necessary at all.

    Best regards-

    Dan

  2. November 15, 2013 at 1:16 pm

    Dan – This question is not intended to be sarcastic or rhetorical… I’m just curious if you can explain this to me because I don’t quite understand….

    Can you explain to me what religious purpose would be served by firing a BYU bookstore employee who happens to be in a same-sex marriage? In what way would her presence at a cash register in a bookstore violate the religious freedom of BYU?

    I could understand if you were talking about admissions policies… As a BYU alum I’m familiar with the standards policies for BYU students; but as long as BYU remains a private university, I don’t see there being any interference with it’s ability to reject any student it finds out of compliance with its standards. But that’s not what you’re talking about is it?

  3. DTR
    November 15, 2013 at 4:29 pm

    John-

    Your question is a good one, and I haven’t interpreted it as antagonistic in any way. In the 1980s, the Church fired an employee who worked in a non-religious capacity (building engineer) because he failed to qualify for a temple recommend. He sued the Church, and the case went all the way to the Supreme Court, which ruled that the termination did not violate the 1964 Civil Rights Act.

    Justice Brennan wrote: “For many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself.”

    In other words, part of being a religion is getting to define what roles are vital to your religious mission, and who qualifies to fill those roles. Because the Church considers BYU a vital part of its religious mission, it requires not only students, but also employees, to follow the Honor Code. “As an educational institution affiliated with the LDS Church, BYU prefers to hire qualified members of the Church in good standing.” [source]

    If your hypothetical bookstore employee is fired for being in a same-sex marriage, her civil rights are violated. If she cannot be fired for being in a same-sex marriage, BYU’s (and the Church’s) freedom of religion is violated (i.e., freedom to set religious qualifications for its employees engaged in furthering its religious mission). When individual civil rights and institutional freedom of religion collide, sparks fly. Again, I am not taking a position on the wisdom or decency of one outcome or another. I only contend that the advance of marriage equality and anti-discrimination laws will inevitably impact religious freedom, contrary to the headline above.

  4. November 16, 2013 at 10:04 am

    But wouldn’t the ruling you cited from the 1980s be evidence that in fact the Church will continue to be able to “define itself,” “determining [which] activities are in furtherance of [its] religious mission” and who is sufficiently committed to that mission to conduct those activities?

    It seems to me that precedents like that are precisely the kind of precedents that are being cited by supporters of same-sex marriage as proof that granting legal protections and rights to gay and lesbian couples won’t detract from currently existing legal protections and rights for religious institutions.

    Speaking for myself — but also for everyone I’ve ever discussed this with in the LGBT community — I want my family to be protected under the law just like everyone else’s. And I have no desire to leverage those basic legal protections, which my husband and I need, into a weapon to disrupt the Church’s programs and practices.

    Maybe there will be extremists who will attempt to do so. And if they do, I would be among the first to speak out against them, and to hope that the courts would rule in favor of protection of religious freedom just as they did in the court case you cited from the 1980s.

    I love the Church, and revere the process by which the Church teaches us, enlightens us, and forms our characters. To me, it seems self-evident that as a people we are in need of greater light and knowledge about the nature of homosexuality, and the place of LGBT people in the kingdom of God. Without reverence for the Church, for its polity, its teachings and its practices, whatever light and knowledge we might eventually get on this subject would be meaningless.

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