Prof. Robin Wilson Analyzes Maine's Same-sex Marriage Debate

Lexington, VA Saturday, October 17, 2009

This commentary appeared originally in the Bangor Daily News on Oct. 17, 2009

I've followed Maine's contentious political battle over Question 1 but did not feel that it was my place to enter it. But a letter I co-wrote, urging the governor and Legislature to include specific religious liberty protections in Maine's same-sex marriage law, has become a centerpiece in the debate about repealing same-sex marriage.

Let me explain why I, and others, foresaw an impact on religious organizations and individuals. In 2004, a Maine District Court upheld a Portland ordinance forcing a religious charity either to extend employee spousal benefits to registered same-sex couples, or to lose eligibility for city development funds. Outside Maine, The Salvation Army lost $3.5 million in social service contracts with San Francisco because it refused, on religious grounds, to provide benefits to employees' same-sex partners.

Church-affiliated organizations have also lost their exemption from taxes. In New Jersey, local authorities stripped a Methodist-affiliated group of its property-tax exemption when it refused, on religious grounds, to host same-sex civil union ceremonies in its beachside pavilion and then billed them for $20,000.

Individuals who prefer to step aside from same-sex ceremonies have been affected, too. New Mexico's Human Rights Commission fined a husband and wife photography team more than $6,000 because they declined to photograph a same-sex commitment ceremony.

These impacts on organizations and individuals who hold a traditional view of marriage could occur precisely because no explicit exemption is provided otherwise. Suffice it to say, the reasons for our concern are real.

Let me be clear, however, it is possible to recognize same-sex marriage without treading on religious liberty. One right need not come at the expense of the other. But this requires careful crafting of protections for conscientious objectors.

I and others urged the governor and Legislature to enact a concrete, legislative solution that avoids the otherwise inevitable conflicts between same-sex marriage laws and religious freedom. The narrow exemption we proposed would clarify that people and organizations may refuse to provide services for same-sex weddings if doing so would violate deeply held beliefs, provided the refusal creates no hardship for the couple seeking the service.

Some say that the bind same-sex marriage places religious individuals and organizations in comes from state anti-discrimination laws. These laws, passed years before same-sex marriage, address commercial services like driving taxis and ordering burgers, where denials are nothing more than gay-animus.

But marriage is different. For many people, marriage is a religious institution and wedding ceremonies are a religious sacrament. For them, assisting with marriage ceremonies has religious significance that ordering burgers and driving taxis simply do not. Many of these people have no objection generally to providing services, but they would object to directly facilitating a marriage. Without explicit protection in Maine's law, many will be faced with a cruel choice: your conscience or your livelihood.

Some also assert that Maine's new law already protects religious liberty. It says churches and clergy will not have to solemnize same-sex marriages "protection" already guaranteed by the Constitution. The new law does exempt nonclergy from solemnizing marriages if to do so would violate deeply held religious beliefs. But that's it. What is missing is significant:

It provides no protection from the loss of government benefits for refusing to recognize a same-sex marriage.

It provides no protection for individual objectors, other than clergy and authorized celebrants.

It provides no protection to religious organizations from suit under Maine's anti-discrimination laws.

The kind of careful, robust, religious protections that we urged the governor and Legislature to include in Maine's new law are part of the law in Vermont, Connecticut and New Hampshire. These states protect religious organizations from suit under the state's anti-discrimination statutes and provide protection from exclusion from certain government programs. While these laws didn't address every important religious liberty issue, they tackled far more than Maine.

What does this mean for same-sex marriage in Maine? It is not too late to get same-sex marriage right. The governor should file today a bill request for consideration in January's legislative session, which would provide real protection for religious groups and individuals. Such exemptions would alleviate the vast majority of avoidable conflicts between same-sex marriage and religious conscience, while still allowing for full recognition of same-sex marriages.

It would also go a long way to turning down the temperature in the heated debate over Question 1.

Robin Fretwell Wilson is a professor of law at Washington and Lee University and co-editor of "Same-Sex Marriage and Religious Liberty: Emerging Conflicts" (Rowman & Littlefield 2008).

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