Religious Liberty and Same-Sex Marriage: Colliding Freedoms?

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On November 5, 2013, the Illinois legislature became the next government body to approve of same-sex marriage, following the United States Supreme Court’s recent invalidation of the federal definition of marriage as being between a man and a woman. The Illinois bill is expected to become law upon Governor Quinn’s signature. 

Illinois religious institutions, other faith-based organizations, and private businesses should be prepared to face developing challenges to their First Amendment religious liberty interests, as should similar organizations in other states that have legalized same-sex marriage.  In particular, facility use, employment, and business relationships are key issues in which religious liberty is increasingly colliding with emerging legal developments involving same-sex marriage, sexual conduct, and gender identity.

What is the source of this collision?  Illinois and other state laws prohibit discrimination based on sexual orientation in employment, real estate transactions, and places of “public accommodation” (e.g., a restaurant, or store, theater).  The federal Religious Freedom Restoration Act (and its counterpart in Illinois and other states) provides that – consistent with First Amendment freedoms – the government cannot burden the exercise of religious beliefs without a compelling government interest.  Consequently, to the extent that one’s religious beliefs are contrary to same-sex marriage and related homosexual activities, the question arises as to which legal protection wins out.  The specific applications are critical and growing.

For example, must a church allow same-sex couples at its facility, if its religious doctrine prohibits homosexual marriage?   Up to now, the expected answer would be no.  In the wake of same-sex marriage approval, the growing legal opinion is that if the church opens its doors to allow marriages for couples that do not share the church’s other religious beliefs, then neither can the church turn away homosexual couples.  Likewise, if the church rents out its facilities to members of the general public, then it must also allow homosexual couples under the “public accommodation” discrimination laws.

As is becoming increasingly clear, other faith-based organizations and private businesses may be in a far weaker position to assert First Amendment religious liberty rights.  Why?  Generally speaking, only churches enjoy exemptions from sexual orientation discrimination laws.  Lawsuits have already begun in other states against faith-based private employers, claiming that they are legally obligated to provide goods and services to homosexual couples.  In other words, the argument is being made that one’s religious beliefs should not legally matter, at least insofar as actions toward homosexual couples are concerned.

For religious institutions like churches, as well as other faith-based organizations, strategic planning is essential for optimal First Amendment protection.  Key elements include the following:   

1.              Documents:  The organization should make sure that its documents reflect its sincerely held religious values.  If a church’s doctrine is that marriage is permissible only between a natural born man and woman, and sexual activity is permissible only within such marriage, then such doctrine should be reflected in its key corporate documents like bylaws, written statement of faith, and other policies.

2.              Internal Activities:  The organization needs to have its own house in order.  Does it “act like” a religious organization, or a secular one, particularly with respect to its employees?  If the answer is the latter, then its leaders should not expect to enjoy much legal religious freedom or other exemption from sexual orientation laws.

3.              External Activities:  How does the organization hold itself out to the public?  The same considerations as above apply.  If it regularly allows facility use by people with contrary beliefs - or provides them with services - without any credible faith-based reason for doing so, then the organization likely will be subject to the sexual orientation anti-discrimination laws.  On the other hand, if it makes plain that its facilities and services include a religious doctrine basis that may be exclusive in operation (without shaming anyone or otherwise leading persons into the indignity of being excluded), then it likely will be better protected from compelled acts in violation of such religious doctrine.