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In New York, marrying gay rights and religious freedom

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Charles C. Haynes
July 1, 2011

Winners and losers in the battle over gay marriage in New York can agree on at least one thing: Without robust protections for religious groups, the law legalizing same-sex marriages would not have passed.


Eleventh-hour negotiations between Republican senators and supporters of the bill led to the insertion of strong language ensuring that churches and other religious organizations could not be sued or penalized for refusing to accommodate gay marriages.


As a result, the Republican-controlled state Senate agreed to bring the marriage bill to the floor for a vote—and then four GOP senators provided the margin of victory.


The religious exemptions in the New York law are the latest example of the common-ground strategy that has worked in other states to secure passage of same-sex marriage and civil-union legislation—from New Hampshire’s legalization of gay marriage to the new Rhode Island law recognizing civil unions.


At the heart of this approach is language exempting religious organizations from any obligation to “provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of a marriage,” to quote the New York legislation. Such laws also exempt clergy from any obligation to perform a same-sex wedding ceremony.


The religious protections in New York appear to go further than bills passed in other states, with language covering a broader range of religiously affiliated organizations. Moreover, the law ensures that a religious institution refusing to provide services for same-sex ceremonies cannot later be penalized by local or state governments with loss of government benefits (e.g., state funding for social-service programs it administers).


Much to the dismay of many advocates on both sides of the debate, gay marriage and religious freedom are now joined at the hip. What some gay-rights supporters decry as “bigotry enshrined into law,” religious leaders opposed to gay marriage see as “the best we can get.”


However reluctantly arrived at, these attempts to balance gay rights and religious conscience are laudable examples of American democracy on its best days. When rights claims collide and the electorate is divided, elected officials are challenged to craft public policies that enable us to live with our deep differences.


The New York Legislature, I would argue, has met that challenge by upholding two important constitutional principles:


First, under the First Amendment, religious convictions about marriage should not be enshrined into law. However the state decides to define “marriage,” it must have clear and convincing secular or civic grounds for the definition.


Second, laws concerning marriage—or anything else—should not substantially burden or interfere with religious practice without a compelling state interest to do so.


As growing numbers of Americans support gay marriage (53 percent according to a recent poll), the New York compromise is likely to be replayed in other states. As messy as it is—and as unsatisfying as it may be to people on both sides—reaching constitutional common ground is in the best interests of all Americans.


After all, the religious-liberty provisions of the First Amendment are themselves the result of a struggle to negotiate 18th century religious divisions that were often deep and abiding. Out of our differences, we chose religious freedom because, as James Madison put it, the “multiplicity of sects” in the new nation left us little alternative.


Now we face new divisions—and difficult choices. But with New York as a model, we can acknowledge both gay equality and religious liberty as basic human rights.


Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org.

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