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First Amendment: Gay marriage, religious freedom and the need for civil dialogue

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Charles Haynes
March 20, 2014

In recent months, legislators in more than a dozen states—from Hawaii to Georgia—have attempted to enact laws they describe as necessary to protect religious freedom.

 Some are broad “religious freedom restoration acts” very similar to laws already on the books in many states. Others are amendments to existing laws aimed at allowing businesses to deny wedding services to gay couples on religious grounds.

 All are driven by the rapid growth of public support for same-sex marriage and gay rights, reflected most powerfully in a series of recent court decisions favoring challenges to bans on same-sex marriage in even the reddest of states.

 None is expected to pass any time soon, due in large measure to fallout from the bitter debate over Arizona's proposed law vetoed earlier this month by Gov. Jan Brewer.

 In calmer times, many of these bills might have faced little or no opposition. After all, the original Religious Freedom Restoration Act passed Congress almost unanimously and was signed into law by President Bill Clinton in 1993.

 What's changed, of course, is the ascendancy of gay rights and same-sex marriage. Those once in the majority on the gay rights issue—successfully passing laws and state constitutional amendments banning gay marriage—are increasingly in the minority.

 In this new environment, many religious conservatives are rushing to put in place legal mechanisms for seeking exemption from laws that prohibit discrimination on the basis of sexual orientation.

 Unfortunately, intemperate voices on both sides are making it difficult to have a civil discussion about if and when to accommodate conscientious objectors to same-sex marriage.

 Far too many proponents of gay rights dismiss any and all attempts to carve out exemptions for religious people from nondiscrimination laws as nothing more than bigotry disguised as “religious freedom.”

 On the other side, many conservative groups characterize all opponents of religious exemptions as part of the “homosexual lobby” intent on denying religious freedom.

 Same-sex marriage vs. religious freedom is fast becoming a shouting match where any concern for the common good is lost in the din of charge and countercharge.

 Before more damage is done, people on all sides should take a deep breath and acknowledge that nondiscrimination and religious freedom are both core American principles. Resolving the tension between these two fundamental rights should be a balancing act, not a zero-sum game.

 To some extent, of course, same-sex marriage proponents have already (grudgingly in most cases) acknowledged the need to signal concern for religious freedom.

 All states that have passed laws legalizing same-sex marriage have included language ensuring that clergy will not be forced to conduct same-sex ceremonies (politically smart, but unnecessary because this would never happen under the First Amendment).

 In some states, laws or court decisions extend protections to religiously affiliated groups seeking exemption from participating in or recognizing same-sex marriages.

 Thus far, however, no state explicitly grants exemptions to wedding businesses that, on grounds of religious conscience, object to providing services for same-sex weddings.

 Is there any room for accommodating conscientious objectors who would be required to participate actively in the ceremony or preparing for the ceremony such as photographers or marriage counselors? Can the law draw a distinction between those who want to discriminate against LGBT people (which should not be allowed) and those who object to participating in a ceremony that offends their faith?

 However we ultimately answer these and related questions about religious claims of conscience and same-sex marriage, these issues require getting beyond the name-calling and engaging in civil, respectful dialogue.

 It's easy to understand why LGBT people may not be enthusiastic about finding ways to accommodate those who have opposed (and continue to oppose in many cases) laws protecting LGBT people against discrimination.

 But to paraphrase religious-freedom advocate Roger Williams (in his 17th century argument with Puritan minister John Cotton), when you are at the helm—after being so long in the hatches—don't forget what it was like to be in the hatches.

 Claims of conscience don't always—and shouldn't always—prevail. But a society that takes freedom seriously must seek ways to protect liberty of conscience whenever possible.

 After all, the right we guard for others today may be the right we need for ourselves tomorrow.

Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute, 555 Pennsylvania Ave., N.W., Washington, DC 20001. Email: chaynes@newseum.org.



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