Is religious freedom under siege because of the ascendancy of the gay rights movement? That’s literally an article of faith for some Christians. Supporters of gay rights in general and same-sex marriage in particular ridicule such alarms.
My own view is that there are a small number of situations in which the 1st Amendment does entitle religious opponents of homosexuality or same-sex marriage to engage in what would otherwise be illegal discrimination.
For example, I was sympathetic to the claim of the Christian Legal Society at the UC Hastings College of Law that it should be able to limit its leadership to students who assented to (and lived by) the traditional view that sex outside heterosexual marriage is a sin. I also think the New Mexico Supreme Court was wrong to rule that a wedding photographer must put her talents to use in commemorating a same-sex union. That amounts to compelled speech; it’s analogous to requiring a Democratic speechwriter to work for a Republican political candidate.
But these are exceptional situations. In most cases, providing services to gay couples implicates neither the internal governance of a religious organization nor compelled speech. A court in Colorado rightly rejected a baker’s claim that making a cake for a gay couple would violate his rights. As the judge put it, the baker had been asked “to bake a cake, not make a speech.” Likewise, operators of hotels, restaurants and other public accommodations shouldn’t be able to cite religious freedom as a reason to refuse to feed or house gay couples.
The problem is that, even if the 1st Amendment gives them an inch, opponents of same-sex marriage insist on taking a mile. That’s an accurate characterization of a law passed by the Kansas House of Representatives that fortunately seems to be stalling in the state Senate.
House Bill 2453 says that “no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender: (a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement; (b) solemnize any marriage, domestic partnership.”
The bill also would allow government employees to refuse to assist gay couples seeking services to which they are entitled. When such a conflict arose, the agency would have to substitute another employee. The statute isn’t a model of clarity, but it’s possible that it would allow a county clerk to refuse to help a gay couple with paperwork associated with a will or a real estate transaction. That’s outrageous.
If opponents of same-sex unions continue to press for this sort of expansive exemption — through litigation or legislation — it will be harder for them to receive a respectful hearing when there really is a conflict between gay rights and religious freedom.
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