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'A coming storm'

A federal constitutional amendment may be the only way to head off a church-state clash over same-sex marriage

'A coming storm'

When he saw the news story, Anthony Picarello did a double-take. On Monday, May 22, more than 30 religious leaders from 10 states traveled to Washington, D.C., to voice their concerns over same-sex marriage and religious freedom. Mr. Picarello, president of the Becket Fund for Religious Liberty, read an online account of a press conference held in conjunction with the trip.

"To consciously legislate against religious traditions . . . is really an affront to my faith," Craig Axler, leader of Reform Congregation Beth Or in Maple Glen, Pa., told reporters.

But Mr. Axler and his group, "Clergy for Fairness," weren't rallying against same-sex marriage. They were complaining that the Federal Marriage Amendment, scheduled for a June 5 vote in the U.S. Senate, "raises alarming constitutional concerns" because defining marriage as between one man and one woman would restrict the liberty of religious leaders who, like Mr. Axler, want to be able to marry same-sex couples.

"The story had the feel of the world turning upside down," Mr. Picarello said.

Particularly since he himself had just made public the findings of 10 top First Amendment scholars who concluded that broadly legalizing same-sex marriage will likely roll back religious freedom for everyone but those who agree with Mr. Axler.

In May, the Becket Fund published a series of scholarly papers generated from a December 2005 conference at which First Amendment scholars and lawyers-several of whom favor or are undecided on gay marriage-weighed in on a series of critical questions: If same-sex marriage is the law of the land, can government then force traditional religious groups to treat same-sex and different-sex marriages exactly alike? Can the government punish groups that resist by denying them government benefits-including tax exemption? What religious freedom defenses can be exerted and which will succeed?

From the perspective of religious conservatives, the answers weren't good.

Marc Stern, general counsel for the American Jewish Congress and a go-to guy for liberals grappling with civil rights, said legal same-sex marriage would set church and state on "a collision course," triggering "a sea change in American law . . . [that] will reverberate across the legal and religious landscape in some ways that are totally unpredictable." George Washington University law professor Jonathan Turley termed the clash "a coming storm."

Among other scholars weighing in: Georgetown University law professor and gay-rights activist Chai Feldblum, University of Maryland law professor Robin Wilson, and Douglas Kmiec, a professor of constitutional law at Pepperdine University. Messrs. Turley and Stern, as well as Ms. Feldblum, support gay marriage. Ms. Wilson is undecided and Mr. Kmiec is opposed.

Thus, the Becket Fund's panel could hardly be said to have an anti-gay-marriage bias. And yet its findings on the questions at hand showed same-sex marriage sharply curtailing, and in some cases wiping out, the religious freedom of its opponents in spheres ranging from taxation, charitable giving, housing, public accommodation, and employment to licensure, professional practice, education, and equal access. (See sidebar below.)

That's because the term marriage and its legal emanations echo throughout the canons of American law, Mr. Picarello said. "Once you change the definition of marriage, you don't change one law, you change thousands of laws."

This is particularly true of the legal touch-points between government and religious institutions like churches, hospitals, schools, and social services groups. Such entities are subject to most of the same regulations as nonsectarian agencies, but that regulation is largely invisible.

"Most people don't trouble themselves with it because it's a mostly harmonious border," Mr. Picarello said. "But same-sex marriage is like a switch. Flip it and you've converted the peaceful border to a hostile one all at once."

Boston Catholic Charities (BCC) provided the first case in point. In November 2003, ignoring the entire canon of U.S. family law, the United Nations 1948 Declaration of Human Rights (which recognized marriage as between a man and a woman), the federal Defense of Marriage Act, and the totality of human history, the Massachusetts Supreme Judicial Court declared that only anti-gay bias could explain why the state's marriage laws excluded same-sex couples. The court ruled the state's man/woman marriage laws unconstitutional and ordered lawmakers to create new ones. Six months later, county clerks in the state began issuing same-sex marriage licenses.

In a separate development, the Vatican issued a statement declaring that the placement of adoptive children with same-sex couples violated Catholic teaching. BCC, which for over a century had helped find adoptive homes for hard-to-place children, had placed a few children with gay couples. But in October 2005, Cardinal Sean O'Malley of the Archdiocese of Boston said the agency would comply with the Vatican mandate.

That declaration and the attendant press coverage-including outraged pronouncements by gay-rights groups-put BCC on the state's regulatory radar. The group was informed that it could not perform its adoption mission without a state license-and it could not get a state license if it refused to place children with same-sex couples.

In March 2006, Boston Catholic Charities, after a century of service to needy children, announced that it was getting out of the adoption business. It is worth noting that the state's encroachment on a religious charity-and by extension on the welfare of orphans-had nothing to do with the agency's receipt of public funds. The case also showcased the rigid stance of the state against providing a religious exemption-a stance that endures today.

"The Massachusetts model is a giveaway," said David Jones, a professor of Christian Ethics at Covenant Theological Seminary. "Once you decide marriage is a 'human-rights issue' and not a sexuality-based social institution, you can't really make exceptions."

When gay nuptials achieve parity with the historical kind-and most of the Becket Fund conference scholars agree that it is likely a "when" and not an "if"-American society may undergo a fundamental shift with respect to religious freedom. First, in their long quest for complete social acceptance, homosexuals will use the club of the state to beat back religious dissent.

One of the first goals will be the stripping away of government "benefits," Messrs. Stern and Turley agree. Already the Boy Scouts in Connecticut, California, and elsewhere, as well as the Salvation Army in New York, have lost access to public facilities-in all cases for failing to cave on religious principles in the face of sexual-orientation nondiscrimination laws. A same-sex-marriage nation would create new turf for gay-rights litigators, since "marital status" is among the protected classes in many nondiscrimination ordinances.

With the social respectability accorded by state-sanctioned marriage-and aided by revised public-school curricula-homosexuality itself could turn another corner, from biblical "abomination" to moral neutrality and onward toward "moral goodness."

Mr. Stern predicts an increase in school-level battles as parents object to their children being taught the moral acceptability of homosexual relationships. "Parents will assert that such instruction conflicts with their right to direct the moral upbringing of their children, interfering with their constitutional right to do so. Such claims have been uniformly rejected."

In her Becket Fund paper, Georgetown law professor Chai Feldblum is politely clear on the need to complete this moral shift. In a footnote, she notes that an increasing number of Americans -42 percent in one Gallup poll-view "homosexual behavior" as "morally acceptable."

"It probably goes without saying," Ms. Feldblum adds, "that 'morally good' wasn't and never has been a choice in these polls-something that needs to change."

A highly sought-after civil-rights attorney, Ms. Feldblum calls the coming collision between religious liberty and same-sex marriage a "zero-sum game" in which the losers will surrender nothing less than the public legitimacy of their own moral views.

"When society's view of morality shifts in a way that is a good shift-e.g., we no longer believe that it is immoral for the races to mix or we no longer believe it is immoral to love someone of the same sex," she wrote, "the people still operating on the former moral plane will necessarily be disadvantaged in general commercial society." Ms. Feldblum sees little room for exceptions.

Neither will other denizens of "tolerance," Mr. Stern predicts. "The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally," he wrote. "The remaining question is whether the champions of tolerance are prepared to tolerate proponents of a different ethical vision. I think the answer will be no."

The main legal obstacle to the path foreseen by the Becket Fund panel is a federal constitutional amendment to define marriage as between a man and a women like the one the Senate is scheduled to consider this week. Forty-five states have some form of marriage protection, including 19 with constitutional amendments, and the issue is a slam-dunk at the ballot box. Voters in 2005 passed 13 constitutional amendments with majorities as high as 76 percent. Defeated at the polls, gay-rights activists have taken the fight for same-sex marriage to the courts. Nine states today have pending lawsuits that challenge marriage laws. In five-California, Maryland, New York, Washington, and Nebraska-courts could redefine marriage by year's end.

That's why Senate Majority Leader Bill Frist (R-Tenn.) didn't want to wait to bring the marriage amendment before the full Senate, even though a post--Labor Day same-sex marriage debate would likely increase conservative turnout for the mid-term elections. "The truth of the matter . . . is that on the question of marriage, the Constitution will be amended," Mr. Frist said in a recent floor speech. "The only question is whether it will be amended by Congress as the representative of the people, or by judicial fiat."


The broad legalization of same-sex marriage would place local, state, and federal governments on a collision course with religious institutions that adhere to a Judeo-Christian ethic. A group of First Amendment scholars-several of whom support, or are at least neutral on, the issue of gay marriage-predicts a hail of religious liberty litigation in four broad categories.


After Massachusetts legalized same-sex marriage, Boston Catholic Charities exited the adoption business rather than cede to state demands that it place children with same-sex couples. If same-sex marriage is legalized, professional licenses might also be denied to psychological clinics, social workers, marriage and family counselors, and others who believe same-sex relationships are "objectively disordered."

Tax Exemption and Government Benefits

Religious groups could find themselves suffering along with the Boy Scouts, as access to public facilities is stripped away. Gay-rights litigators will likely challenge groups' federal tax-exempt status, charging that such an exemption "subsidizes discrimination."

Conflicts Between Civil Rights Law and Religious Freedom

Among the possibilities: Religious employers who refuse to hire or retain employees in same-sex marriages can expect to be sued on the basis of "marital status discrimination." Religious colleges that refuse admission to same-sex couples could face civil lawsuits and loss of accreditation. In Massachusetts, Catholic colleges already are examining whether they must provide married student housing to legally married gay couples.

Freedom of Speech

Principles used by courts in deciding workplace sexual harassment cases will likely migrate to suppress an expression of anti-same-sex-marriage views by religious groups and people. The attorney general of New Jersey recently backed officials at William Patterson University after a non-faculty employee objected to receiving a mass e-mail inviting people to see gay-themed movies. The school disciplined the employee for having engaged in harassment because of her use of a single word, "perversions," to describe the content of the films.

-Source: The Becket Fund for Religious Liberty

Lynn Vincent

Lynn Vincent

Lynn is a senior writer for WORLD Magazine and the best-selling author of 10 non-fiction books.