Does Same-Sex Marriage Threaten Religious Liberty? Scholars Say Yes

Nov 21, 2007

Scholars across the political, religious, and ideological spectrum have reached a significant consensus: The legalization of same-sex marriage threatens religious freedom.

The most recent scholarship on the question appears in an article authored by our own Roger Severino, Legal Counsel of the Becket Fund, which appeared in the latest issue of the Harvard Journal of Law and Public Policy (available here).

Roger recently discussed his Harvard paper on the "Steve Deace Radio Show" (here) and in a debate with Barry Lynn of Americans United for Separation of Church and State on the "Culture Shocks" radio program (here).

In his article, Mr. Severino argues that religious institutions that support husband-wife marriage will be targeted for ejection from a variety of government social-service licensing programs and grants--from family counseling, to education, to adoption services--and even risk losing their tax-exempt status.

Additionally, dissenting religous institutions would face lawsuits for taking adverse action against employees who publicly reject the institution's beliefs about same-sex unions by entering one. Religious employers would then be forced to extend health, retirement, and housing benefits to their employees' same-sex spouses and would also be forced to provide their services in ways that violate their religious tenets through public accomodations lawsuits.

Marci Hamilton, visiting professor at Princeton, agrees with this assessment.  In her bi-weekly Findlaw column, she analyzes Mr. Severino's law review article and concludes that:

The most important issue, though, is not whether there will be a conflict. There will. . . . Thus, the question is not one of a right to religious freedom that courts will protect; it is one of a decision legislatures might or might not make. . . . [I]n the course of the gay marriage wars, legislators will now be asked to consider whether to exempt religious entities . . . [and] the mere invocation of a religious belief that is at odds with government policy -- such as the policy embodied by laws against discrimination on the basis of sexual orientation -- does not, and cannot by itself, determine whether there should be accommodation, or, if so, what its scope should be.

The threat that same-sex marriage presents to religious liberty is broadly acknowleged but this was not always the case.  In early 2006, the Becket Fund introduced this critical facet of the debate into public discourse after hosting a conference of noted first amendment scholars who were gathered to assess the impact that same-sex marriage would have on religious liberty. The result of their scholarly research was a series of papers, set for publication by an academic press, that identified the many contours of the danger and predicted many of the conflicts that have already come to pass. (more information on the conference and copies of the papers available here).

Finally, the Becket Fund has presented these arguments to courts across the country that are grappling with same-sex marriage litigation, and has filed amicus briefs in Maryland, Rhode Island, Connecticut, Oklahoma, Iowa, and California.