Thursday, May 28, 2009

The consequences of same-sex marriage

Five university law professors and the legal council for the American Jewish Conference have sent a letter to a New York Assemblyman warning of the potential consequences of a New York same-sex marriage bill. Below is a summary of the likely consequences:

* Religious colleges may be sued for not making their married student housing available to same-sex married couples.

* Religious colleges may be sued over their codes of conduct that prohibit same sex relationships.

* Religious owners of private businesses may be sued for refusing to provide services to same sex weddings (e.g. florists, photographers, etc.).

* “Religious camps, day cares, retreat centers, counseling centers, or adoption agencies can be sued…for refusing to offer their services to members of a same-sex marriage.”

* Religious organizations and even churches may be sued if they fire employees for marrying someone of the same sex.

* Religious organizations like colleges, hospitals or social service organizations may be denied government grants or contracts if they refuse to provided their employees with same-sex spousal benefits.

* Religious charities that oppose same-sex marriage may be denied access to government facilities.

* Religious “Doctors, psychologists, social workers, counselors and other professionals who conscientiously object to same-sex marriage can have their licenses revoked.”

* Religious non-profits that object to same-sex marriage may be denied licenses for food service, child care, etc.

* Religious colleges may have their accreditation revoked for refusing to recognize same-sex marriage.

* Religious organizations may have their tax-exempt status stripped for objecting to same-sex marriage.

The letter cites the legal reasons for all of this and also cites actual cases in which these things have already happened. The issue is that once same-sex marriage is legalized, the flood-gates of litigation are likely to burst wide-open.

Bear in mind that this is not the fear-mongering of some right-wing special interest group looking for money. Nor was this letter signed by a coalition of right-wing talk show hosts. The letter was sent by law professors from universities like the University of Missouri, Washington and Lee, Valparaiso University, and Notre Dame.

But these professors have a solution. They suggest a “marriage conscience protection” clause which would read something like this:

No individual, no religious or denominational institution or organization, and no organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, shall be penalized or denied benefits under the laws of this state or any subdivision of this state, including but not limited to laws regarding employment discrimination, housing, public accommodations, licensing, government grants or contracts, or tax-exempt status, for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, where such providing, solemnizing, or treating as valid would cause that individual, corporation, association or organization to violate their sincerely held religious beliefs, provided that

(a) a refusal to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization of any marriage shall not be protected under this section where (i) a party to the marriage is unable to obtain any similar services, accommodations, advantages, facilities, goods, or privileges elsewhere and (ii) such inability to obtain similar services, accommodations, advantages, facilities, goods, or privileges elsewhere constitutes a substantial hardship; and

(b) no government official may refuse to solemnize a marriage if another government official is not available and willing to do so.
This seems like an excellent compromise solution (though I have significant trouble with provisions a and b. Someone’s religious convictions cannot be compromised simply because someone else may be inconvenienced).

If gay rights activists were to latch on to this and push for it would show that they really are interested in compromise and tolerance after all. The benefit to gay-rights activists is that it would absolutely take the wind out of the sails of most opposition to gay marriage.

On the other hand, if gay rights activists oppose such a compromise it would show that all their vaunted talk about tolerance was really only just a smoke screen to hide their agenda, they really are every bit as anti-religion as they often appear, and they don’t give a rip about individual conscience or religious liberty.

Please read the entire letter. The link is on ADF.

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