John H. Wilson, Esq.,a former New York State judge
and the author of several books, submitted this article.
News reports are rife with descriptions of the unintended consequences of same sex marriage laws:
- The Christian baker who is forced to make a wedding cake for a same sex couple in violation of his religious scruples.
- The family farm in upstate New York forced to pay a large fine for refusing to host a gay wedding.
- The pastor who runs a wedding chapel in Idaho required to pay thousands of dollars a day in fines if he continues to refuse to perform same sex weddings.
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What are the implications for religious liberty? Doesn’t the First Amendment protect the free exercise of religious? Isn’t there a separation between church and state?
With the advent of same sex marriage statues across the nation, there can be no doubt that the rights of religious persons to “opt out” of involvement in something that offends their moral standards has been severely constricted. Many of the laws which authorize gay weddings also contain exemptions allowing religious institutions to invoke their time honored standards and opt out of participating in such ceremonies. However, these same laws give no protection whatsoever to religious persons who follow the teachings of these same exempted churches.
Several recent cases will illustrate the difference.
In Coeur d’Alene Idaho, Donald and Evelyn Knapp own the Hitching Post, a wedding chapel, situated across the street from Town Hall, where marriage licenses are issued. Both are ordained ministers, and have declined to perform same sex weddings based upon their religious beliefs. The City Attorney brought a discrimination complaint against the Knapp’s, alleging that their chapel is actually a “for-profit” business, and as such, not entitled to protection from the City’s non-discrimination ordinance.
In a letter published on the website for the Alliance Defending Freedom, the City Attorney admits that “if (the Knapps) are truly operating a not-for-profit religious corporation they would be specifically exempted from the City’s anti-discrimination ordinance, Municipal Code 9.56.01 0 et seq.”
Prior to the filing of the anti-discrimination complaint, the Knapps had been operating their business for profit, and not as a religious corporation. Only after the complaint was brought did the Knapps file the necessary paperwork to be considered a church, exempt from the City’s ordinance. This leaves the Knapps in a different legal position than someone who has operated a church all along. But the point to be understood here is that Idaho’s law specifically exempts religious groups, such as churches, from the anti-discrimination law.
In fact, as the City Attorney for Coeur d’Alene states in his letter, “in addition to specifically exempting religious corporations, associations, educational institutions, and societies, section 9.56.040 of the anti-discrimination ordinance states that the ordinance ‘shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion.'”
In New York, Domestic Relations Law Sec. 10-a (1) states that “a marriage…shall be valid regardless of whether the parties to the marriage are of the same or different sex.” However, Section 10-b of the same law specifically states that religious entities, religious corporations, “benevolent orders,” and their employees “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”
In fact, New York’s law goes on to state that “any such refusal to provide services, accommodations… facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize…such religious corporation…”
This is very strong protection for churches and other religious organizations in New York State. But this law, and the ones like it across the country, do absolutely nothing to protect persons of religious conviction who are members of these excluded churches.
The Liberty Ridge Farm in upstate New York, a family owned and operated farm, was contacted by a lesbian couple, who claimed they wanted to have their wedding at the farm. The owners, Cynthia and Robert Gifford, have strong religious feelings, and declined to host the wedding. Unknown to Mrs Gifford, the phone conversation between herself and the brides to be was recorded, clearly in anticipation of litigation against the farm.
The New York State Division of Human Rights ignored the fact that the “victims” had basically “set up” the Giffords, and fined them $13,000.00. The Administrative Judge ruled that the farm “is a for-profit limited liability company that markets its services to the general public through its website and social media accounts, that Liberty Ridge Farm was a ‘place of public accommodation’ and could not rightfully turn away the couple on the basis that they were homosexual.”
The same “for-profit” status of the Hitching Post in Idaho led to the discrimination complaint filed by the City of Coeur d’Alene against the Knapps. But there, the Knapps, being ministers, could change the status of their business to a religious corporation and seek protection under the anti-discrimination law’s exemption for churches. What are the Giffords to do? Must they put aside their sincerely held religious scruples and host weddings their religion teaches them is sinful?
In fact, the Giffords will no longer host wedding ceremonies at Liberty Ridge Farm. Instead, they will only host the reception, regardless of whether the couple is gay or straight, and regardless of the effect on their business.
To date, this is the only choice available to religious persons who wish to actually practice the principals of their faith. In Colorado, baker Jack Phillips has vowed to stop making wedding cakes rather than violate his beliefs and make a cake for a gay couple. In Oregon, Melissa and Aaron Klein closed their bakery and began running their business out of their home to avoid discrimination complaints.
This cannot be the result intended by those who promulgated the laws allowing for same sex marriage. If the law was meant to provide gay people with the freedom to marry whom they chose, how could those same laws be the instrument for suppression of religious expression?
In general, all Americans can agree that discrimination in public accommodations should be discouraged. But at the same time, there are many people who hold mainstream religious views, backed with thousands of years of practice and belief, and the free exercise of these religious beliefs is protected by the First Amendment to the Constitution. How could those same beliefs suddenly be unprotected and discriminatory, leading to these same persons retreating from public participation in their avowed trades?
Currently, there is no satisfactory answer to this question. Many gay rights groups claim the right to battle all forms of discrimination against their right to marry and will recognize no exception. More reasonable lawmakers have built protection for religious institutions into same sex marriage statutes. However, to date, religious persons are not granted any exemption from the same law that protects the churches they attend.
Until this situation is addressed, same sex marriage laws will continue to have the unintended consequence of causing discrimination to be practiced against persons of sincerely held religious convictions.