With New Hampshire considering legislation that would make it the sixth state to legalize same-sex marriage, could religious individuals and institutions that oppose gay marriage be required to recognize or even solemnize these unions? Although churches and other religious organizations, including charities and schools, have typically been exempt from state and local laws prohibiting discrimination based on sexual orientation, it remains unclear how these religious institutions might be affected by new laws that require equal treatment for same-sex marriages. Indeed, such concerns prompted New Hampshire Gov. John Lynch (D) to say he would sign legislation legalizing gay marriage in that state only if lawmakers add provisions giving religious organizations the right not to recognize such marriages. Another possible flash point involves private individuals and businesses that, for religious reasons, do not want to provide wedding-related or other services to same-sex couples.

The Pew Research Center’s Forum on Religion & Public Life turns to professors Robert W. Tuttle and Ira “Chip” Lupu of The George Washington University Law School to discuss how some states are trying to reconcile these and other potential conflicts between the legalization of gay marriage and the free exercise of religion.

Featuring:Ira “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School

Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law and Religion, The George Washington University Law School

Interviewer:David Masci, Senior Research Fellow, Pew Research Center’s Forum on Religion & Public Life

Question & Answer

Some opponents of gay marriage have argued that legalizing the practice could pose a threat to religious liberties. What are their principal concerns?

Opponents of same-sex marriage have argued that state recognition of these marriages could intrude on the freedom of clergy and religious communities to decide what kind of marriages to solemnize. Opponents also have expressed concern that pastors who preach against homosexuality and same-sex marriage in sermons could face criminal prosecution if sexual orientation becomes a legally protected class as part of laws against hate crimes. Indeed, as an example of what could happen here, some same-sex marriage opponents point to the 2004 case of a Christian pastor in Sweden who preached a sermon against homosexuality and was convicted under that country’s hate crimes law. Opponents fear that the risk of prosecution will intimidate clergy from preaching against homosexuality.

Same-sex marriage opponents have identified several other concerns as well, including situations in which religious institutions – from social service providers and hospitals to universities – might be required to choose between compromising their core religious values and ceasing some or all of their operations. In particular, religious organizations that now provide a range of benefits to married couples worry that they will be required to provide the same benefits to married same-sex couples. For instance, opponents point to a 2006 decision by Catholic Charities in Massachusetts to stop placing children for adoption rather than comply with that state’s anti-discrimination laws, which prohibit adoption agencies from excluding same-sex couples from consideration during the selection of adoptive parents.

Along the same lines, opponents worry that religiously affiliated universities and assisted living facilities could be required to make housing available to same-sex couples, or that religious organizations could be required to provide insurance benefits for their employees’ same-sex partners. Although religious organizations typically are exempt from state and local prohibitions on discrimination based on sexual orientation in employment, housing and other commercial activities, it is unclear whether these exemptions will extend to a religious group’s discrimination against married same-sex couples.

Opponents of gay marriage also are concerned about how the legalization of same-sex marriage could impact private businesses and individuals who may have religious objections to same-sex marriage. For example, a professional photographer may want to refrain from taking pictures at a same-sex marriage ceremony for moral or religious reasons. Opponents point out that while religious groups often are exempt from nondiscrimination laws that regulate how goods and services are provided to the public, private individuals and businesses are not exempt from these regulations.

How do supporters of same-sex marriage respond?

Supporters of same-sex marriage argue that the freedoms of religion and speech guaranteed by the First Amendment in the U.S. Constitution, as well as by state constitutions, would protect the rights of clergy and faith communities to use their own criteria for performing marriage ceremonies, as well as the right of clergy to offer sermons that oppose same-sex marriage or homosexuality.

With respect to discrimination against same-sex couples in housing, employment, adoption or other services, gay marriage supporters say that once a marriage is recognized by the state, the couple should not be subject to discrimination and should be treated like any other married couple. Supporters point out that although the U.S. Constitution likely bars states from regulating decisions by clergy or faith communities about who may marry within their religious traditions, the Constitution does not limit state regulation of those who provide adoption, housing or other services.

According to same-sex marriage proponents, religious groups do not, and should not, have the federal constitutional right to apply religious criteria to activities outside their faith tradition. Thus, a state government does not violate the U.S. Constitution if it insists that all adoption agencies – even those operated by religious organizations – must be willing to place children with same-sex couples. A religious organization is not required to approve of same-sex marriage, proponents say, but is required to acknowledge the equality of such marriages for the limited purposes of adoption or other services.

Same-sex marriage supporters also point out that when individuals enter the commercial market as employers or sellers, their federal constitutional right of freedom of religion is significantly limited. So, for instance, if a catering hall hosts wedding receptions for opposite-sex couples, it must also do so for gays and lesbians.

How have these concerns been addressed by the courts?

Until now, almost all court decisions about same-sex marriage have involved the question of whether the state must recognize these marriages. The potential conflict between same-sex marriage and freedom of religion has not yet been presented squarely to the courts. Now that several states recognize these marriages, however, it is quite likely that, in the near future, courts will have to address the issue.

For example, a state might deny financial benefits to a religious organization that discriminates against a member of a same-sex couple, and the organization might challenge that denial in a lawsuit against the state. In such a case, the religious organization might raise religious freedom protections as a legal justification for its policies. In that situation, the courts would need to decide whether these protections trump anti-discrimination laws.

Under current federal constitutional law, it would be difficult for a religious organization to prevail in such a case. State constitutional law, however, might be more favorable toward a religious organization on this issue. The U.S. Constitution’s Free Exercise Clause protects religious organizations only from laws that specifically burden religious conduct, such as a law that requires clergy to solemnize same-sex marriages. But some state constitutional and statutory provisions offer greater protection for religious conduct. These state provisions require jurisdictions to exempt religious organizations and individuals from any regulations that impose a “substantial burden” on religious beliefs, unless the regulation in question is the only means of protecting a “compelling government interest.” Under these state provisions, for instance, a religious college could argue that providing housing to same-sex couples would significantly burden the college’s religious beliefs about marriage, and the state likely would be required to exempt the college from any requirement to offer housing to same-sex couples.

How, so far, have state legislatures tried to balance the rights of married same-sex couples with the principle of freedom of religion?

Although five states allow gay marriage, only Vermont, Connecticut and Maine actually have enacted laws recognizing the practice. (In Massachusetts and Iowa, same-sex marriage was legalized as a result of a court decision and without any legislative enactments.) The Vermont law, enacted in early April 2009, includes three specific provisions relating to freedom of religion. The law recognizes that clergy have the right not to preside over same-sex marriages; that religious organizations have the right to refuse the use of their facilities to celebrate same-sex marriages; and that fraternal benefit societies, such as the Knights of Columbus, have the right to refuse to provide insurance benefits to the same-sex partners of their members if the organization has religious scruples against doing so.

The Connecticut law, also enacted in April 2009, includes the same safeguards as the Vermont law. In addition, the Connecticut law allows religious organizations that provide adoption services to deny those services to same-sex couples as long as the religious organization’s adoption services are not supported by state or federal funds.

The Maine law, enacted in May 2009, contains two provisions related to freedom of religion. First, the statute says that anyone “authorized to join persons in marriage” has the right to refuse to perform any marriage ceremony. Second, the Maine law also says that the state’s new definition of civil marriage does not authorize the government to “compel, prevent, or interfere” with a religious community’s policies about marriage. The precise meaning of this provision is unclear, but this law could offer significant protections for religious organizations that oppose same-sex marriage.

The New Hampshire legislature is currently debating a gay marriage law that would likely combine some features of the Connecticut and Vermont laws. Like the Connecticut law, the New Hampshire bill would insulate religious organizations that oppose same-sex marriage – as well as their clergy and other employees – from any obligation to provide services that could contribute to the solemnization, celebration or promotion of gay marriage. And like the recently enacted Vermont statute, the New Hampshire bill would protect the right of religiously affiliated fraternal benefit societies that oppose gay marriage, such as the Knights of Columbus, to exclude from membership people who are married to someone of the same sex. It also would allow such benefit societies to deny insurance benefits to the same-sex spouses of members.

Proposed legislation in New York contains a narrower protection for religious liberty. While this proposed law exempts those who are authorized to perform marriage ceremonies and who object to gay marriage from being required to solemnize such marriages, it does not address any other implications for religious organizations.

In the future, is this conflict more likely to be played out at the federal level or the state level?

The most basic decisions will be made by the states because states rather than the federal government issue marriage licenses and are the primary sources of law related to marriage and divorce. Thus, each state that legalizes same-sex marriage may create its own balance between marriage rights and freedom of religion. As of now, states have wide discretion under federal law about whether and how to recognize a legal status for same-sex couples. States have similarly wide discretion about whether to exempt religious organizations from certain rules of nondiscrimination. So, unless the U.S. Supreme Court steps into the picture, state courts are likely to be the primary legal venues on this issue.

The federal government, however, also may play a significant role in the evolution of this conflict. In 1996, the U.S. Congress enacted and President Bill Clinton signed the Defense of Marriage Act, which stipulates that, for purposes of federal law – such as the filing of joint tax returns or eligibility for survivors’ benefits under Social Security – the federal government recognizes only opposite-sex marriages. Thus, even though Massachusetts, Connecticut, Iowa, Maine and Vermont now recognize same-sex couples who marry, the federal government does not treat these people as married.

Proponents of same-sex marriage hope to see Congress repeal the Defense of Marriage Act. If Congress were to take steps in that direction, opponents of same-sex marriage would likely insist on some protection for religious liberty in that bill. Such protection might include a requirement saying that states recognizing same-sex marriage must respect the right of clergy and religious institutions to recognize and solemnize only opposite-sex marriages. Such protection also might extend further to mandate exemptions for religious organizations from state laws that prohibit discrimination against same-sex couples. Depending on the outcome, federal law could have a far-reaching and significant impact on this issue.

Photo credit: AP

This transcript has been edited for clarity, spelling and grammar.