The Angry New Frontier: Gay Rights vs. Religious Liberty

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Sarah Bentham/AP Images
Beth Moore and Abby Hill signing their marriage license at the Washington County Courthouse, Fayetteville, Arkansas, May 2014

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At the end of June, the Supreme Court will likely declare that the Constitution requires states to recognize same-sex marriages on the same terms that they recognize marriages between a man and a woman. If it does, the decision will mark a radical transformation in both constitutional law and public values. Twenty-five years ago, the very idea of same-sex marriage was unthinkable to most Americans; the notion that the Constitution somehow guaranteed the right to it was nothing short of delusional.

One sign of how far we have come is that the principal ground of political contention these days is not whether same-sex marriages should be recognized, but whether persons who object to such marriages on religious grounds should have the right to deny their services to couples celebrating same-sex weddings. Opponents of same-sex marriage can read the shift in public opinion as well as anyone else: a 2014 Gallup poll reported that, nationwide, 55 percent of all Americans, and nearly 80 percent of those between eighteen and twenty-nine, favor recognition of same-sex marriage. Today, same-sex couples have the right to marry in thirty-seven states and the District of Columbia. And come June, most legal experts expect the Supreme Court to require the remainder to follow suit.

Having lost that war, opponents of same-sex marriage have opened up a new battlefield—claiming that people with sincere religious objections to it should not be compelled to participate in any acts that are said to validate or celebrate same-sex marriage. There is an obvious strategic reason for this. One of the problems for opponents of same-sex marriage was that they could not credibly point to anyone who was harmed by it. Proponents, by contrast, could point to many sympathetic victims—couples who had lived in stable, committed relationships for years, but were denied the freedom to express their commitment in a state-recognized marriage, and who were therefore also denied many tangible benefits associated with marriage, including parental rights, health insurance, survivor’s benefits, and hospital visitation privileges. Claims that “traditional marriage” would suffer were, by contrast, abstract and wholly unsubstantiated.

Focusing on religiously based objectors puts a human face on the opposition to same-sex marriage. Should the fundamentalist Christian florist who believes that same-sex marriage is a sin be required to sell flowers for a same-sex wedding ceremony, if she claims that to do so would violate her religious tenets? There are plenty of florists, the accommodationists argue, so surely the same-sex couple can go elsewhere, and thereby respect the florist’s sincerely held religious beliefs. Should a religious nonprofit organization that makes its property available to the general public for a fee be required to rent it for a same-sex wedding? Should a religious employer be compelled to provide spousal benefits to…



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