Same-sex marriage and the courts

March 12, 2013

In a recent editorial calling for same-sex marriage to be legal, the Century editors noted that if and when legalization happens at the national level, the First Amendment will protect religious groups that have their own position on the question. The government won’t, for example, be able to force a church or minister to perform a same-sex wedding against their will. 

Yet as Mark Silk notes, a range of religious liberty questions will likely have to be addressed—and probably litigated. These are limited and justiciable but not trivial. They include whether

  • religious colleges must provide married student housing to same-sex couples
  • religious organizations can discriminate in employment against people in same-sex marriages
  • religious organizations must offer benefits to same-sex spouses of their employees
  • individuals or organizations can refuse to provide services to same-sex couples

As in the debate over including contraception in health-care coverage, defining what constitutes a “religious organization” will be a major concern.

The question of how much the courts should get involved in deciding same-sex marriage at all is an interesting strategic one. Some advocates for same-sex marriage worry that a positive ruling from the Supreme Court, which hears arguments on the issue this month, might turn out to be an empty victory. At a time when popular opinion in the states is already trending toward same-sex marriage, it might be preferable to let the democratic process run its course rather than have the high court intervene.

The worry is that a Supreme Court ruling for same-sex marriage might have the effect that Roe v. Wade had on the legalization of abortion: it galvanized the opposition, polarized debate and forestalled a legislative solution that was emerging. Judging from Jeffrey Toobin’s profile in the New Yorker, Supreme Court Justice Ruth Bader Ginsburg appears to share this concern.


same-sex marriage and the law

If a married student attends a RC college today, he/she is welcome in the married student housing, whether or not they are part of a valid Catholic marriage. In what legal way would it be different if a married gay couple applies for married student housing? -ditto- for the question of health benefits for employees (except, of course, churches can refuse to employ people who don't match their religious beliefs, and that might well eliminate gay people at a school, just as it currently eliminates gay people at the Salvation Army).  

Whose religious liberty are we protecting, exactly?

I have been frustrated that the national conversation around religious liberty and same-sex marriage has consistently presumed an anti-gay stance among religious communities.  Allow me to offer another issue and perspective.  

I am an ordained minister at an open-and-affirming United Church of Christ congregation in California.  My religious belief, and that of my churches, is that the sacredness of the marriage covenant is defined by the love, fidelity, and commitment of the persons involved and not by their genders. Therefore, my ministerial practice should be to host same-sex and opposite-sex couples equally in the church.

Currently, Proposition 8 prevents me from following that religious and ministerial conviction. I can legally officiate at the weddings of my opposite-sex parishoners, but can not provide the same service to my same-sex parishoners. I am forced by the law to treat my parishoners disparately, in violation of my own religious beliefs.  Where is the protection for my religious freedom and that of my congregation?