Marriage & Family: Good Fences

by   Roger T. Severino                                                                                                                            Vol. XX, No. 2, February 2007

You should never knock a fence down until you know exactly what you will be setting loose. The older the fence, the more careful you should be. This is, of course, a paraphrase of G. K. Chesterton’s famous warning to the social reformers of his day who sought to radically overhaul long-standing social institutions in the name of progress. Today, Chesterton’s admonition applies with equal force to advocates of same-sex “marriage.” But do even same-sex “marriage” opponents know the full implications of such a dramatic change?

As a law firm dedicated to protecting the freedom of all religious traditions, the Becket Fund for Religious Liberty represents institutions and clients that both support and oppose same-sex “marriage.” But as a legal matter, we believe the current marriage debate largely overlooks the looming danger that same-sex “marriage” poses to religious freedom. Ironically, religious persons who are deeply concerned about the impact of same-sex “marriage” on America’s moral and cultural climate rarely mention the threat to their very own churches, mosques, and synagogues. It is ironic, but not surprising.

HOW FREE?

A common American myth is that private, non-commercial, religious groups are free to run their own affairs without being regulated or punished by the government, even if they take controversial stands on the issues of the day. While it is true that we live in a free country, the proper question is “how free?” Although the First Amendment prevents government from directly dictating religious beliefs, Supreme Court opinions over the last twenty-five years now hold that the state may regulate a host of actions that are inseparable from those beliefs. Unfortunately, the state has proven all too willing and able to penalize nonconforming religious organizations with its newfound powers.

Many religious institutions feel compelled by religious belief to treat same-sex “marriage” as morally inferior to traditional marriage and to actively oppose its adoption. So what happens when the government says same-sex “marriage” must receive equal treatment, and religious institutions say they will not change their policies? The result is that Catholic Charities gets kicked out of the adoption business.

I am referring to the recent controversy in Boston over gay adoptions in the wake of Massachusetts legalizing same-sex “marriage.” While one could have predicted that a right to gay adoption would follow a right to same-sex “marriage,” how many people predicted that it would also lead to religious institutions being banned from the adoption business? Yet this is precisely what happened. Here’s how.

Ever since the 2003 decision that legalized same-sex “marriage” in Massachusetts (in Goodridge v. Dept. of Public Health) all Massachusetts state and local government entities treat same-sex “marriage” just like opposite-sex marriage. In fact, to do otherwise now constitutes “irrational” and “invidious discrimination” under the law. But since marriage is woven into the very fabric of the law, a change in its definition changed not one law, but thousands. Few realized at the time that many of these thousands of laws also directly regulate the workings of religious institutions.

For generations, the Catholic Church in Massachusetts has been motivated by faith to help place orphan children in loving homes. But there is a catch. The state now strictly regulates such philanthropy, requiring a license for all adoption agencies. Historically, this has not posed any difficulties, but Massachusetts now demands that all licensed adoption agencies must be willing to place children in families without discrimination. You see the problem.

By law, married families in Massachusetts now include same-sex couples, yet religious reasons prevent the Catholic Church from placing orphan children in their care into homosexual households, even if the prospective parents are legally married. The result of this clash between religion and state so far is that religious institutions are being forced out of the adoption business in Massachusetts at the cost of religious liberty.

FAR-REACHING EFFECTS

The Massachusetts adoption experience is by no means an anomaly; it is a sign of things to come. Consider another license commonly granted to religious institutions—that of the license to solemnize civil marriage itself. Currently, every licensed pastor, rabbi, or imam in America can declare: “By the power vested in me by the state of X, I now pronounce you husband and wife.” But will they be allowed to continue solemnizing civil marriages if they refuse to also declare couples “husband and husband” or “wife and wife”?

The Massachusetts experience is again instructive. There, Justices of the Peace who refused to solemnize same-sex “marriages” because of religious objections were summarily fired. It is likely that this rule will be extended to all persons that are licensed to solemnize marriage. With a stroke of a pen, one more public privilege will be revoked from thousands of religious institutions.

What government licenses, government regulates. Even so, many thousands of religious institutions are driven by faith to provide services that require licensing or similar accreditation—from homeless shelters, to health clinics, to psychological and marriage counseling, to primary and university education. Since government regulation of religious institutions is practically inescapable, therein lies the risk. Governments may soon require that all licensed organizations not discriminate by “marital status” in the provision of its services. In places where marital status includes same-sex “marriage,” religious institutions will be increasingly banned from licensed occupations and programs and thereby increasingly banned from the public square.

Religious institutions will also face eviction from the public square by another avenue—through the targeted withdrawal of an array of government benefits. Here, the experience of the Boy Scouts of America is particularly informative. In the Supreme Court case of Boy Scouts v. Dale, the Scouts vindicated their right to exclude openly gay scouts from leadership positions, but that victory came at a very heavy cost. State and local governments have subsequently used every means at their disposal to accomplish by withdrawing benefits what they could not impose directly on the Scouts.

In the case of Barnes-Wallace v. Boy Scouts, the Scouts were kicked off San Diego’s public parkland after being sued over their “discriminatory” membership policies. Similarly, in Evans v. Berkeley, the city of Berkeley was allowed to ban the Scouts from its public marina program due to violations of Berkeley’s non-discrimination policies. Finally, in Boy Scouts of America v. Wyman, a court held that the Scouts may be excluded from a state’s workplace charitable contributions campaign because of their “discriminatory” membership policies. Simply switch “religious institutions opposed to same-sex marriage” for “Boy Scouts” and you will get a sense of the problem to come for houses of worship.

In some cases, government will be able to mandate conformity to its legal definition of marriage more directly by imposing civil liability under anti-discrimination laws. For example, a religious organization that dismisses a choir director that enters a same-sex “marriage” may face an instant lawsuit based on marital status discrimination under employment law. Similarly, employment law could require religious institutions to extend any employee spousal benefits they provide to all same-sex spouses. In the housing context, religious universities may be forced by law to provide married housing to same-sex couples, as was recently the case of a Jewish university in New York (see Levin v. Yeshiva University).

TAX AND DESTROY

While all these risks are substantial, the threat that many religious leaders seem to fear most is the loss of tax-exempt status for refusing to recognize same-sex “marriage.” If it is true that, in the words of Chief Justice John Marshall, “the power to tax involves the power to destroy,” it is doubly true for non-profit religious institutions, many of which would have to close their doors if their operations and donors were suddenly taxed.

But is the threat real? Yes. We know that it is because the Supreme Court has already upheld an analogous revocation in the case of Bob Jones University v. United States.

In Bob Jones, the Court found that if an organization’s discriminatory membership policies become “so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred,” its state and federal tax exemptions may be revoked. Although the discrimination in that particular case dealt with race, the court announced the principle that a government interest in eliminating long-standing discrimination “substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”

Since Massachusetts has already labeled religious institutions that reject same-sex “marriage” invidious discriminators, it may be the first in a line of states to declare that these institutions violate the community conscience and are therefore unworthy of tax-exemption under state law. Both opponents and supporters of gay rights should heed Chesterton’s warning and think very hard about just what will be let loose if we knock down the fence of marriage.

[Roger Severino is Legal Counsel for the Becket Fund for Religious Liberty, an interfaith public-interest law firm located in Washington, D.C. Academic papers analyzing the religious liberty implications of same-sex marriage are available for you to download at www.becketfund.org. ... http://www.breakpoint.org/listingarticle.asp?ID=2384.

From BreakPoint Worldview, June, 2006, reprinted with permission of Prison Fellowship, P.O. Box 1550, Merrifield, VA 22116, www.breakpoint.org .  

Articles on the BreakPoint website are the responsibility of the authors and do not necessarily represent the opinions of Chuck Colson or Prison Fellowship. Links to outside articles or websites are for informational purposes only and do not necessarily imply endorsement of their content.]