Religious liberty doesn’t stop at the church doors. The Becket Fund for Religious Liberty, the nonpartisan public-interest law firm dedicated to protecting the free expression of all religions, filed an amicus brief with the Supreme Court making the case that legal recognition of same-sex relationships as marriages creates hazards for religious liberty, particularly when courts impose a redefinition of marriage.
The Becket Fund’s brief, filed by Eric Rassbach, explains:
A scholarly consensus has emerged that giving legal recognition to same-sex marriage will result in wide-spread, foreseeable, and to some extent legislatively avoidable church-state conflict. Some scholars argue that the rights of religious believers should nearly always give way to the right of gays and lesbians to be free from discrimination. Others support strong exemptions for objecting religious believers.… Since neither Baehr [the case that prompted the Defense of Marriage Act (DOMA)] nor In re Marriage Cases [the California Supreme Court case creating same-sex marriage] even recognize these conflictslet alone resolve them—it was entirely rational for Congress and the people of California to respond as they did.
For example, when the California Supreme Court forced the legal recognition of same-sex relationships as marriages in that state, the only religious liberty provision ceded by the Court was that no religious official would be required to perform a marriage. However:
By limiting religious freedom concern to “forced solemnization,” the California Supreme Court allowed itself to be distracted by a red herring—albeit one that parties on opposing sides of the marriage debates have been all too happy to indulge. Among scholars, “[n]o one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them.”
But religious liberty is about more than just solemnizing weddings. The Court ignored the many cases where churches—and individual believers—interact with the state:
These conflicts fall into two broad categories. First, objecting religious institutions and individuals will face an increased risk of lawsuits under federal, state, and local anti-discrimination laws, subjecting religious organizations to substantial civil liability if they choose to continue practicing their religious beliefs. Second, religious institutions and individuals will face a range of penalties from federal, state, and local governments, such as denial of access to public facilities, loss of accreditation and licensing, and the targeted withdrawal of government contacts and benefits.
California’s Proposition 8 and DOMA, the Becket Fund argues, were rational responses to these concerns, by retaining civil unions for same-sex unions and marriage for the union of husband and wife.
The Church-State conflict over conscience has already begun. As Heritage’s Thomas Messner has documented again and again and again, redefining marriage has already been—and will continue to be—a nightmare for religious liberty. To give just one example, in Massachusetts, Illinois, and Washington, D.C., Catholic Charities were forced to shut down their adoptive services because they would not place foster children with same-sex couples.
These conflicts—and the foreseeable conflicts if DOMA and Proposition 8 are overturned by the Supreme Court—put First Amendment rights to freedom of religion and association in danger. The Becket Fund concludes in the final two sections of its brief that whatever one thinks about the merits of redefining marriage, citizens and their representatives—not unelected judges—should make marriage policy:
Because many of the conflicts between same-sex marriage and religious liberty can be avoided—at least in part—by legislative exemptions, the judiciary should allow the legislatures to go first.
Allowing the people to decide avoids a frozen conflict and facilitates their acceptance of whatever may be the ultimate result of their public debate.
Let the political process do its work. The definition of marriage isn’t something for the courts to decide. The Court should respect the constitutional authority of the people.