New same-sex ‘marriage’ legislation imperils religious liberty

| July 31, 2013 | 6 Comments

On Aug. 1, the state of Minnesota will begin to legally recognize same-sex unions as “marriages.” The social, legal and cultural consequences of the redefinition of marriage have been discussed numerous times in this forum and in others.

Confusion remains, however, as to the effect of this law on churches, ministries, charities, educational institutions and persons who continue to assert that marriage is only between a man and a woman.

Clergy, church protections

The same-sex marriage legislation states that religious associations, religious corporations, religious societies, and any educational institutions “operated, supervised, or controlled by” one of these organizations cannot be penalized for “taking any action with respect to the provision of goods, services, facilities, or accommodations directly related to the solemnization or celebration of a civil marriage that is in violation of its beliefs.”

Further, each religious entity mentioned maintains “exclusive control over its own theological doctrine, policy, teachings, and beliefs regarding who may marry within that faith,” and that clergy cannot be punished for refusing to solemnize a civil marriage for any reason.

The religious liberty protections of the legislation essentially end there.

Proponents of the redefinition of marriage sold the bill by stating that religious liberty was adequately protected because churches and clergy would not have to marry same-sex couples. What sounded like a concession was really nothing of the sort. Most legal experts know that our state and federal constitutions protect the right of clergy and churches to conduct religious rites regarding marriage consistent with their theological beliefs.

Remaining problems

There are three troubling problems with regard to the bill’s accommodations for religious institutions.

First, the protections for a religious entity, such as a church, do not extend to so-called “secular business activities . . . unrelated to the religious and educational purposes for which it is organized.” It is unclear how churches or the government will analyze whether certain church or ministry activities are “secular,” and therefore not allowed to refuse the use of their goods, services or facilities for a same-sex “wedding.”

What about a church bookstore and gift shop that is open to the public? Or a church social hall or facility that is used sometimes for non-religious purposes, or which is made available to the public for rent? Or food service present in the church? Not all of these examples apply to Catholic parishes, but they are present in other communities.

Second, any religious entity that receives government grants or funds for programs such as adoption services or anti-poverty efforts, cannot act according to its beliefs about marriage for that specific program. This provision could effectively exclude many faith-based entities from performing social services.

Third, the exemptions are limited to organizations specifically incorporated as religious entities, but exclude non-profit organizations that have a religious mission; religious educational institutions not controlled or run by a religious corporation, society, or association; and for-profit religious institutions such as a Catholic gift store.

All of these could be required to provide goods, facilities, or services related to the solemnization or celebration of a same-sex “marriage.” They also could be required to “perpetuate” those unions through, for example, the required provision of married student housing for same-sex couples on a college campus, or the use of certain facilities to celebrate wedding anniversaries.

Churches, ministries and organizations should review their policies and bylaws to ensure they can continue to operate consistent with their mission and beliefs, as well as not run afoul of anti-discrimination laws.

People in the pew

As has been made clear by the Minnesota Department of Human Rights, the legislation provides no conscience and religious liberty protections for nonprofits or businesses owned and run by people of faith, nor for the individual person in the pew.

Florists, like the woman in Washington State who — though willing to make arrangements for and sell flowers to individual LGBT persons — refused to make arrangements for a wedding and is now being sued by the Washington attorney general, could be punished in Minnesota as well.

Bakers, innkeepers and other wedding industry professionals could face sanctions for refusing to provide goods or services that would give approbation to a same-sex union, and could also face legal pen-

alties or proceedings in front of human rights commissions as they have in states such as Vermont and New York, after marriage was redefined there.

Further, licensed professionals such as counselors or social workers who refuse to counsel or serve same-sex couples in a way that would require them to acknowledge the validity and moral goodness of the relationship could be punished, excused from public educational programs, or lose their licenses altogether.

What is, isn’t discrimination

Same-sex marriage proponents steadfastly refused to offer broader accommodations because, in their view, no same-sex couple should feel the stigma of “discrimination” and suffer what they think is no different than the animus which African-Americans suffered during Segregation.

Further, they errantly claimed that

such “discrimination” was already forbidden by the Minnesota Human Rights Act.

Two points are in order in response to these claims.

For one, the Church does not support, nor has ever argued for, individuals and businesses that hold themselves out as public accommodations to be able to deny

a person goods or services simply on the basis of sexual orientation. For a restaurant to deny an individual person food simply because they are openly gay is wrong and is the kind of unjust discrimination that the Church consistently condemns.

It is not discriminatory, however, to treat same-sex couples differently from a male-female couple, especially in the context of the provision of goods or services related to the solemnization, celebration or perpetuation of a marriage (e.g. counseling, wedding cakes, facilities use, florists, and caterers). One should not be forced to give consent to and approval of a same-sex relationship.

Second, it is an error to argue that refusing to do so in the business context has long been considered discriminatory and illegal, as some politicians, officials and legal scholars have done. How could it be the case that acting consistent with what was once state law is “discrimination”?

Unfortunately, the legal landscape has changed. The bottom line is that, on Aug. 1, acting on your belief that marriage is between a man and a woman could get you punished in Minnesota.

Where to go for help

Should you, your business or your organization face a complaint or investigation, there are places you can turn to for help.

The Minnesota Catholic Conference will gladly take calls about your situation and try to refer you to an attorney for help. Often, attorneys will take these cases pro bono.

There are also legal organizations such as Alliance Defending Freedom and the Becket Fund for Religious Liberty that also may be able to assist you in re-writing your organization’s bylaws or handling an administrative complaint. Both can be found on the Internet.

Not everyone is called to file lawsuits, close their business or suffer legal penalties to stand up for the truth. But we are all called to witness to the importance of religious liberty as essential to the dignity of each human person and its importance as a bedrock principle of American public life.

The Minnesota Catholic Conference will continue to push for religious liberty accommodations at the State Legislature and in Congress. We hope you will raise your voice with us.

Jason Adkins is executive director of the Minnesota Catholic Conference. This article represents the opinion of the author and does not constitute legal advice.

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Category: Faith in the Public Arena