Question: How do Mormons believe that same-sex marriage affects religious freedoms?

Table of Contents

Question: How do Mormons believe that same-sex marriage affects religious freedoms?

The Church emphasizes these concerns in its document, "The Divine Institution of Marriage"

Listed here are only a few examples of possible or actual conflicts between religious liberty and the newly-declared "right" to same sex marriage. Given the creativity of those who use the courts as a means for social activism, as well as the complexities of relations in the public and private spheres, many others are sure to arise. Laws in one area interact with those of another in unexpected and often unforeseen ways--and this is especially true when state or federal courts are interpreting those laws.

Even if one supports gay marriage as public policy, if one is truly interested in liberty for all, it should be clear that these issues ought to be addressed as part of implementing that policy. The alternative is to subject everyone to the uncertainty, costs, and social conflict which litigating each area will inevitably produce—likely for decades. This type of culture war will not hasten the tolerance which homosexuals claim is their only goal, and in fact may retard it as religious believers come to feel more and more besieged and circumscribed by opponents who seem to want tolerance and liberty for themselves, but not for those who disagree with them. On the other hand, homosexuals will likely grow increasingly militant and angry that their legally declared rights to marriage are being contested by believers at every turn. This will not serve anyone well.

In fact, many observers have noted that “gay rights” groups have as a goal the marginalization and silencing of those who teach that same sex acts are wrong. (If this is so, then a strategy of sweeping judge-imposed, rather than legislated, law suits their purposes well.) The homosexual advocates are not content to be tolerated and protected from violence and discrimination—they want to silence those who would continue to claim that their actions are sinful. Eugene Volokh, an advocate of same sex marriage, noted:

The gay rights movement has long involved three related goals. One has to do with liberty from government repression-freedom from sodomy prosecutions, from police harassment, and the like. A second has to do with equal treatment by the government: The movement to recognize same-sex marriages is the most prominent recent example. A third has to do with delegitimizing and legally punishing private behavior that discriminates against or condemns homosexuals (emphasis added).[1]

Others have been even more blunt, noting that many homosexual activists want to "'discredit[] and force[] to the margin' religious practices that honor traditional marriage”.[2]

Those who believe in less government interference, rather than more, should likewise see that it is better for all concerned—and personal liberty—if these issues are acknowledged and addressed head-on, rather than with blithe promises that gay marriage will change nothing for others and it is only about “gay rights”. This is false, since the form in which those rights are implemented—or imposed—will have a substantial impact on the rights of religious believers.

When supporters of same sex marriage discuss this issue, they often attempt to reassure those with religious concerns by promising that religious ministers will not be forced to perform same sex marriages within their own denominations

When supporters of same sex marriage discuss this issue, they often attempt to reassure those with religious concerns by promising that religious ministers will not be forced to perform same sex marriages within their own denominations. In an LDS context, this has been raised by both advocates and opponents of same sex marriage by discussing whether Mormons would be forced to perform gay marriages in temples.

Given the strong free exercise of religion protection in the Bill of Rights, many who have not examined the issue closely have concluded this ought not to be an issue of much concern.

It is generally not appreciated that the issue of gay marriage has a great deal of potential impact on issues of religious freedom more generally

However, it is generally not appreciated that the issue of gay marriage has a great deal of potential impact on issues of religious freedom more generally. These concerns have been virtually ignored by proponents of gay marriage, and opponents of gay marriage have not been very successful in articulating them, partly because they do not lend themselves well to quick, sound-bite explanations.

These concerns loom large, however, in the Church of Jesus Christ of Latter-day Saints' opposition to legalized same sex marriage in the United States. This is illustrated by the Church's indication that it is not opposed to the type of legal protection which civil unions could provide same sex couples (or others), "so long as these do not infringe on the integrity of the family or the constitutional rights of churches and their adherents to administer and practice their religion free from government interference."[3]

The Church also emphasizes this concern in its document, "The Divine Institution of Marriage":

Those who favor homosexual marriage contend that “tolerance” demands that they be given the same right to marry as heterosexual couples. But this appeal for “tolerance” advocates a very different meaning and outcome than that word has meant throughout most of American history and a different meaning than is found in the gospel of Jesus Christ. The Savior taught a much higher concept, that of love. “Love thy neighbor,” He admonished. Jesus loved the sinner even while decrying the sin, as evidenced in the case of the woman taken in adultery: treating her kindly, but exhorting her to “sin no more.” Tolerance as a gospel principle means love and forgiveness of one another, not “tolerating” transgression.

In today’s secular world, the idea of tolerance has come to mean something entirely different. Instead of love, it has come to mean condone – acceptance of wrongful behavior as the price of friendship. Jesus taught that we love and care for one another without condoning transgression. But today’s politically palatable definition insists that unless one accepts the sin he does not tolerate the sinner.

As Elder Dallin H. Oaks has explained,

Tolerance obviously requires a non-contentious manner of relating toward one another’s differences. But tolerance does not require abandoning one’s standards or one’s opinions on political or public policy choices. Tolerance is a way of reacting to diversity, not a command to insulate it from examination.

The Church does not condone abusive treatment of others and encourages its members to treat all people with respect. However, speaking out against practices with which the Church disagrees on moral grounds – including same-sex marriage – does not constitute abuse or the frequently misused term “hate speech.” We can express genuine love and friendship for the homosexual family member or friend without accepting the practice of homosexuality or any re-definition of marriage.

Legalizing same-sex marriage will affect a wide spectrum of government activities and policies. Once a state government declares that same-sex unions are a civil right, those governments almost certainly will enforce a wide variety of other policies intended to ensure that there is no discrimination against same-sex couples. This may well place “church and state on a collision course.”'

The prospect of same-sex marriage has already spawned legal collisions with the rights of free speech and of action based on religious beliefs. For example, advocates and government officials in certain states already are challenging the long-held right of religious adoption agencies to follow their religious beliefs and only place children in homes with both a mother and a father. As a result, Catholic Charities in Boston has stopped offering adoption services.

Other advocates of same-sex marriage are suggesting that tax exemptions and benefits be withdrawn from any religious organization that does not embrace same-sex unions. Public accommodation laws are already being used as leverage in an attempt to force religious organizations to allow marriage celebrations or receptions in religious facilities that are otherwise open to the public. Accrediting organizations in some instances are asserting pressure on religious schools and universities to provide married housing for same-sex couples. Student religious organizations are being told by some universities that they may lose their campus recognition and benefits if they exclude same-sex couples from club membership.

Many of these examples have already become the legal reality in several nations of the European Union, and the European Parliament has recommended that laws guaranteeing and protecting the rights of same-sex couples be made uniform across the EU. Thus, if same-sex marriage becomes a recognized civil right, there will be substantial conflicts with religious freedom. And in some important areas, religious freedom may be diminished (emphasis added).[4]

Latter-day Saints would be inclined to accept these cautions simply because they come from those they sustain as prophets. But, this perspective is shared by many who have studied and reflected upon the question from a purely legal perspective. The remainder of this article focuses on a secular analysis which supports the contention that same-sex marriage will inevitably intersect with religious liberty in unexpected and troubling ways.

How would same sex marriage impact religious freedom?

This question was addressed in great deal by a number of legal scholars from across the political and ideological spectrum. In December 2005, the Becket Fund for Religious Liberty, "a non-profit, public interest legal and educational institute dedicated to protecting the free expression of all religious traditions" invited a group of scholars to "take as a given that the legal definition of marriage [would be] expanded to include same-sex couples, and then to explore the religious freedom implications of that legal change."[5]

In his extensive review of the areas of potential conflict, Marc Stern[6] (an attorney with American Jewish Congress since 1977, and a leading expert on Church-state law) notes that instituting gay marriage "will reverberate across the legal and religious landscape in ways that are unpredictable today" (1). Stern notes that "no one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them," but he warns that "I am not optimistic that, under current law, much can be done to ameliorate the impact [of same sex marriage] on religious dissenters. If there is to be space for opponents of same-sex marriage, it will have to be created at the same time as same-sex marriage is recognized, and, probably, as part of a legislative package."[6]:1,57

This demonstrates why the California example which required Proposition 8 was perhaps most likely to draw the Church's attention: the democratically-assessed vote of the California public was overturned. Judge-made law is a blunt instrument. Judges, when making rulings and writing opinions, are only allowed to consider the specific issues which have been raised in that case, and cannot branch out in order to provide additional protections. For instance, consider the example of the court case overturning Proposition 8. There were only two legal questions before the court: whether Proposition 8 violates the 14th amendment to the US Constitution, and whether California officials, by enforcing Proposition 8, violate another federal law (the second issue is a derivative of the first). The parties were able to present many arguments for and against each possible outcome, and some of the arguments invoked religious liberty concerns, but at the end of the trial the judge was only able to answer "yes" or "no" to the two questions and state his reasoning. He had no ability to say "yes, but because I'm concerned for religious liberty, I also rule that the following religious protections shall also be law..." Religious liberty issues can be separately litigated, but must be considered one by one, at considerable cost to those bringing the cases and long delay before a resolution is reached. In such cases, the judge is also less likely to rule in favor of religious liberty when a previous ruling, like the one overturning Proposition 8, contains that judge's rejection of the argument that threats to religious liberty are a sufficient justification to not establish same-sex marriage via court case.

In short, law made by a judge's ruling on a case does not have the opportunity to protect the rights of religious believers who have moral objections to same sex marriage. Stern points out that being forced to perform marriages (which is not a real risk) is the least of religious believers' worries unless same-sex marriage is implemented along with the appropriate protections for religious groups. It is far more likely that such protections can be put in place if they are legislated rather than litigated in the courts after the fact.

Risks to religious groups include the following (the relevant page numbers to Stern's paper are included, and should be consulted for further information); other sources are cited in the endnotes:

Past experience with the courts and conflicts between civil liberties and religious freedom

Civil liberties legislation and religious exceptions have not fared well. Stern describes the "winner take all" mentality which results in an unwillingness to allow any religious exceptions, "no matter how limited and how justified":

That clashes between religious liberty and the civil rights of participants in same-sex marriage are inevitable is shown not only by the cases discussed below, but by recent clashes over proposed legislation to protect religious liberty. Both clashes were won in a rout by those supporting unbending civil rights protection, chiefly gay rights....[A]fter revised federal legislation had been introduced to protect religious liberty to the extent Congress still had power to do so, the question arose of whether and how civil rights laws would be affected. Professor Douglas Laycock and I made the rounds of congressional offices to explain the legislation and respond to legislative concerns about civil rights. One of our appointments was with a liberal African-American member from the South, a man whose commitment to civil liberties I admire. The meeting was private-no press and only a few staff, all well versed in law. The congressman could not be persuaded that religious exemptions from the civil rights laws, no matter how limited and how justified, would not quickly deteriorate into a general assault on the civil rights citadel. He was not playing to a crowd; there was none....

We argued to no avail that it was not likely that including religious liberty exemptions would lead to any substantial erosion of the ban on racial discrimination. We walked out of the office knowing that we had failed to persuade. The point is not that we were inarticulate (I might have been; Professor Laycock certainly was not) or that we had no case to make. The point is that people who have been the victims of discrimination believe (sometimes correctly, sometimes not) that forces of bigotry remain strong and are barely contained by law. Consequently, they see any exemption or weakening of resolve as likely to erode hard-earned gains. That fear goes beyond substantive secular disagreements over whether equality claims ought to generally trump liberty claims where the two conflict. It also goes beyond claims that protecting the dignity of man trumps the legalistic and moralistic-and, for many, outdated and immoral-prohibitions of Leviticus. Instead, the claim is that the search for exemptions is a back door effort to undermine equality rights generally. This claim is particularly acute in regard to gay rights. Much, if not almost all, of the opposition to the so-called "gay-rights agenda" comes from religious sources. Some of that opposition is hard to describe as anything other than raw bigotry (i.e., unfounded accusations of child abuse and the like). When each side thinks that the effort is not about the resolution between a localized conflict but a skirmish in a take-no-prisoners war, it is hard to expect either side to allow the other any victories.[6]:27-28

The lack of a legislative solution to these issues means that those who litigate them will have a variety of statues under which to lodge protest. "The plaintiffs can invoke any of these statutes as applicable, or, as in the case of California, they can invoke a global civil rights statute such as the Unruh Civil Rights Act. The most obvious advantage of this choice of weapons is that plaintiffs get the advantage of the statute with the narrowest or even non-existent statutory religious exemption and the broadest remedies (that is, attorney's fees)."[6]:29

Freedom of expression

  • Religious believers' right to preach against same-sex behavior can be threatened.[6]:1-9 Such cases have already occurred abroad, and a review of the international data shows "gives some sense of how far the scales are tilted against expressions critical of homosexuality."[6]:6 Despite the fact that one might think that "Under the American regime of freedom of speech, the answer ought to be easy,"[6]:1 Stern goes on to argue that "There is nevertheless reason to worry now in the United States. Principles governing sexual harassment in the workplace could easily encompass expressions by religious institutions and persons that oppose same-sex marriage."[6]:7
  • It is an unsettled matter in current US law as to "what sorts of religiously affiliated institutions fall within the scope of religious exemptions. The National Labor Relations Board and reviewing courts are 'all over the map' in deciding what is a religious institution."[6]:9 Given that unelected courts will be the ones to decide such issues, religious believers are right to be worried if their rights are not explicitly protected before hand.
  • Religious students' right to express their views about whether same-sex acts are sinful may be threatened: "Schools in a democratic society must educate, not brainwash. Indeed, school officials have an obligation to teach students to deal with, tolerate, appropriately respond to, and shrug off disagreements, even offensive disagreements. How else will students learn to function as citizens of a democracy? Despite this duty, these cases suggest that school officials prefer to quash divisive speech rather than teach this essential skill of democratic citizenship."[6]:13 One judgment demonstrates how exclusion that is prejudicial to religious believers might occur:
Valid grounds [wrote the court] may include a school's concerns that a club's discriminatory policies would disadvantage, subordinate, or stigmatize the excluded students, debase the morals of students who practice the exclusion, or frustrate the teaching of the "fundamental values necessary to the maintenance of a democratic political system." These values include "tolerance of divergent political and religious views, even when the views expressed may be unpopular," but also "disfavor the use of terms of debate highly offensive or highly threatening to others."[6]:35n169
  • Religious believers may find their ability to speak out elsewhere in the public square (e.g., billboards or advertisements) threatened.[6]:17

Freedom of parents to choose what is taught to their children in the public schools about moral issues

  • The right of parents to control what their children are taught about moral issues such as same sex acts is also unclear: "There will also be clashes between schools and parents objecting to their children being taught the acceptability of same-sex relationships. Parents will assert that such instruction conflicts with their right to direct the moral upbringing of their children, interfering with their constitutionally protected right to do so. Such claims have been uniformly rejected. However, it is not within the competence of public schools to overtly criticize church groups opposed to same-sex relationships."[6]:14
  • Student-led clubs in schools are also at risk if they oppose same sex acts or marriage: "Schools will undoubtedly argue that the well being of students whose parents are partners in a same-sex marriage is endangered by clubs devoted to opposing same-sex marriage.... Claims that tolerating hateful speech endangers others or denies their constitutional right to attend school have been made by school officials in analogous cases involving private student speech....[The relevant court decision] is a threat to anti-same-sex marriage speech because it authorizes schools to selectively limit student speech. It is an ominous precedent. Those seeking to protect the right to speak out against the very thing [pro-gay clubs] sought to advance, same-sex relationships, should have loudly criticized it. Unfortunately, the silence was deafening."[6]:17 This is an excellent example of a broader problem--advocates of same sex acts and rights are vocal about their right to speak out and be heard, but are happy to see those who oppose their views silenced.

Freedom for religious believers to be licensed by government or other regulatory bodies

  • Religious groups opposed to same sex marriage may find it difficult to receive necessary licenses from governments controlled by those who disagree with their stance. At the least, such matters would result in costly and time-consuming litigation if not settled legislation before the fact[6]:17-22
  • Religious believers who require professional licensure to carry out their profession are at risk of sanctions or delicensure if their views on same sex marriage do not accord with the licensing body's views of what is proper . As Stern notes:
Conflicts between the helping professions and religious groups can be expected to increase. How will providers propose to deal with same-sex couples who come for marriage counseling? Will they refuse to provide counseling to such couples? Would a refusal violate public accommodation laws? Probably. Would religious professionals attempt to dissuade clients from same-sex activity? Would that be considered a breach of professional standards and therefore grounds for the loss of a professional license? …These conflicts erupted in Massachusetts with regard to the licensing of Catholic Charities to place children for adoption. Catholic Charities refused to place children with same-sex couples as required by Massachusetts law. The Massachusetts legislature refused to carve out a special rule for religious groups opposed to same-sex marriage. Opponents of such an exception labeled it unconstitutional. The president of the Massachusetts Senate said he could not support a bill "condoning discrimination." The bill went nowhere.[6]:24
As is well known, this required Catholic Charities to close its adoption services. Such conflicts and others like them can be expected to increase if they are not dealt with proactively by the legislature and must be settled by the blunt instrument of the courts.
  • Professionals may be in jeopardy if they refuse to provide services (e.g., artificial insemination) for same-sex couples which they regard as immoral. Physicians have already been sued in California for such a refusal. It involves several extremely worrisome points:

First, the plaintiff patient prevailed in the trial court even though the physicians were prepared to refer the patient to another physician in the same practice and to pay any additional expenses resulting from the referral. [Thus, a physician cannot decline to provide the procedure but be certain that it is performed by someone who has no moral objection. This is a terrible threat to the conscience of religious professionals. - FAIR] The objecting physicians were willing to treat the patient for all other purposes, including a pregnancy resulting from the procedure, so that the tangible burden on the patient was virtually nil. (These facts are disputed, but the case has been litigated so far as though this factual dispute were irrelevant.)

Second, this is not a case where physicians refused to treat a class of patients because they did not approve of their lifestyle and believed they were facilitating their patients' sins. The physicians are being asked to perform a procedure that they regarded as directly sinful....[6]:45

Professional groups were cowed by public pressure, and backed down from defending a physician's right to refuse to perform a procedure he or she found morally repugnant:

Third, it is noteworthy that the California Medical Association filed two briefs. The first emphasized physician autonomy, but was withdrawn after creating an uproar. The association then substituted another brief, expressing horror at the thought that a physician might engage in "invidious" discrimination, but otherwise expressing support for the right of a physician to exercise professional judgment about performing particular medical procedures.[6]:46

One might argue that no one can force a physician to perform an abortion, another practice which is freighted with moral objections. This is true, but this right is protected by statute--that is, it was explicitly written into the law. "Absent such a statute, free exercise claims under Title VII's accommodation provision or the Constitution have not fared well."[6]:46 "But civil rights laws and malpractice suits are not the only risks lurking. Licensing authorities may also exercise their authority to coerce religious conscience to yield to secular morality."[6]:47 "There are sufficient unhappy instances of physicians yielding to prevailing morality in the past century to give pause to those who would insist otherwise-Tuskegee, eugenics, Soviet psychiatry."[6]:47 Despite this, religious physicians (as well as other professionals) have ample reason to be concerned that without strong legislative protection for religious believers, they may well be forced to perform acts that violate their religious beliefs or suffer financial and professional penalties. "[P]rofessional groups-especially in the social services field-have been skeptical of religious claims for exemption. Marriage counselors, social workers, and psychologists can expect challenges under either public accommodation or licensure laws if they refuse to facilitate same-sex partnerships."[6]:47

Issues of taxation and government funds

  • "There will also be substantial conflict over (1) eligibility for government funding for institutions that do not acknowledge same-sex marriage; and (2) conditions attached to government funds."[6]:24
  • Likewise, "there will inevitably be challenges to the federal and state tax-exempt status of institutions discriminating in admissions against same-sex couples."[6]:31. "The IRS rules for tax exemption for all private schools do require proof that a school's curriculum is not tinged with racism, although these rules have not been challenged in court. (One has to ask: would the IRS in the future require suppression of teachings hostile to same-sex marriage as a condition of tax exemption?)"[6]:33

Religious education and other institutions

  • Institutions such as universities (e.g., BYU) could be vulnerable to legal charges if they "discriminated" by refusing to admit couples that were same-sex married.[6]:31 With the exception of schools training professional clergy, "matters are less clear-even for religious schools that endeavor to create an enveloping religious environment. Discrimination on the basis of sexual orientation or membership in a same-sex couple is not 'religious discrimination,' which is the common formulation of exceptions to civil rights laws. Even Christian high schools in California have been sued for expelling a lesbian couple.[6]:31
  • For some religious groups, the issue may even arise of what to do about children raised by same-sex married parents. "Orthodox Jewish schools in New York have been grappling with whether to admit children of single mothers who conceived with assisted reproductive technology. On the one hand, they feel obligated to educate all Jewish children; on the other, they are reluctant to do anything that would signal approval of these untraditional arrangements. (One has to ask what the result would be if a school decides to exclude such children and is sued under an ordinance barring marital status discrimination.) Would it matter if a school generally insists on parental compliance with all of the school's religious norms or whether it singles out sexual orientation? In the former case, the exclusion will appear rooted in "religious" discrimination, in the latter, in "sexual orientation" or marital status. Paradoxically, this could mean that only the most insular groups, the ones most insistent on total student and parental compliance with religious norms, could avoid state coercion."[6]:32
  • Housing at schools owned by religious bodies will also be an issue: "Levin v. Yeshiva University held that a "married only" rule had the effect of discriminating against same-sex couples on the grounds of sexual orientation, since such persons cannot marry.165 A fortiori, a rule allowing only heterosexual couples into married housing will be illegal if same-sex marriage becomes legal."[6]:33
  • "A final issue is whether, under either public accommodation statutes or statutes guaranteeing equal opportunity in education, religious universities need to allow clubs advocating gay rights to meet on their campuses, even if the clubs advocate positions at odds with a school's religious commitments concerning sexual morality....The results in the case law so far are mixed."[6]:35-36
  • "Georgetown University...was successfully sued...and required to permit a gay-student club." This suit took place under public accommodation law, which typically governs such facilities as stores, hotels, theaters, stadiums, and the like.[6]:38 Likewise, "The New Jersey Civil Rights Commission is presently considering a public accommodation discrimination claim against a Methodist-owned camp meeting for refusing to rent a gazebo-sometimes used for church services-for holding a same-sex union ceremony."[6]:39 Thus, religious educational institutions may be subject to suits under a wide variety of legal statutes. This illustrates how "Public accommodation law has in fact been used as a weapon to force ideological change on organizations."[6]:39
  • Employment at religious schools will also likely see a great deal of litigation: "Parochial schools firing unmarried pregnant female teachers have found a mixed reception in the lower courts in the face of allegations of sex discrimination because males engaging in extra-marital sex are not discharged, if only because such activity by men is hard to prove. Hard litigation can be expected over youth leaders and the like."[6]:50

Religious believers in the work-place

  • Much is properly said about avoiding discrimination and harassment in the work-place targeted at homosexuals. But, what of that which may be experienced by religious believers? What if someone chose a government career long before same-sex marriage was in anyone's plans? Now, with state-sanctioned same sex marriage, this religious believer may be forced to perform such marriages, even though he or she believes they are morally wrong. "There is as yet no law addressing the question of whether public employees will have any right to accommodation if they seek to recuse themselves from performing or recording same-sex marriages. The Vermont Supreme Court has suggested that no such constitutional right exists. Other courts in other contexts have been equally reluctant to allow public officials to invoke Title VII to pick and choose how they will enforce laws, even if others can fill in for them. And, as noted above, Title VII has not provided much help for professional employees seeking to refuse to assist sinners with their services. Given the absence of First Amendment speech rights for public employees, it seems very unlikely such rights of abstention will be recognized."[6]:52 This is yet another case where religious rights must be protected by legislation, or they will likely not be protected at all. And, absent such protection such careers are essentially barred to religious believers who object to same-sex marriage.

Joint commercial/religious undertakings

  • Sometimes religious groups rely on commercial entities which they do not directly control as part of their religious observance. This has direct relevance to LDS readers:
At least in the Orthodox Jewish community, many religious goods and supplies are provided not directly by the synagogues and not even by not-for-profit corporations wholly under religious auspices. Instead they are provided either by freestanding not-for-profits not formally owned or controlled by a religious institution201 or by for-profit businesses acting in compliance with religious norms. I understand that the same is true of other churches. Communion wafers in the Catholic Church and temple garments worn by Mormons are not produced by the church itself, but by private companies under religious supervision.
Stern goes on to describe the vast variety of potential problems which arise: some are theoretical at this point, and some have already been litigated. All pose potential problems for the reduction of religious liberty and association:
1. A for-profit restaurant or catering hall, operating under the supervision of an Orthodox rabbinical group to insure that the food served is kosher, is asked to cater a lesbian commitment ceremony conducted by a rabbi from a different branch of Judaism. The Orthodox rabbinic organization threatens to remove its supervision for that affair. The couple insists on a kosher affair with Orthodox rabbinic supervision.
(a) May the restaurant refuse the affair on the ground that the rabbinic group will not permit its name to be used in this connection, and without its approval the restaurant's business would be destroyed?
(b) Does the rabbinic group itself become subject to the public accommodation laws because of its symbiotic relationship with the restaurant, undoubtedly a place of public accommodation?
(c) Could the restaurant accept the catering job, but post signs on its premises saying that it (or its supervising agency, or both) found the same-sex ceremony offensive?
Fortunately for almost all concerned, the restaurant went bankrupt before the question had to be answered.
2. Could a summer camp operated in strict conformity with religious principles-and without which conformity parents would not enroll their children-refuse to accept children coming from same-sex marriages? Could it accept them on condition that the parents would not attend as a couple on visiting days? Should it matter if the camp is operated by a for-profit or not-for-profit corporation?
3. What would be the legal options for a cemetery (or a funeral home) asked to perform a funeral for a member of a same-sex couple when the funeral (or, for example, a grave marker) will indicate that the deceased was the loving partner of a person of the same-sex? The problem will be more acute for the cemetery than the funeral home, since the latter is generally not held responsible for what is said of the deceased (i.e., no one blames a funeral home when the deceased is eulogized as generous and saintly, when he in fact was miserly and sybaritic). Would the result be different if, as in some faiths, funerals are regularly performed in the house of worship?
4. What of a church-affiliated community center (gym, Little League, etc.) that offers family programs? Must it enroll same-sex couples as families? What of a church picnic for families that is advertised in the local general circulation newspaper?
5. A religiously affiliated family service provider offers marriage-counseling services. Must it counsel same-sex couples in ways that facilitate or preserve the relationship? Would it matter if the service is advertised or is available only by referral of a minister? Would it violate the law to counsel partners to such marriages that their relations are sinful?
6. Would a printer be required to print invitations to same-sex marriages?[6]:39-41


Notes

  1. Eugene Volokh, "Same-Sex Marriage and Slippery Slopes," Hofstra Law Review 33 (2005): 1155, 1178; cited in Douglas W. Kmiec, "Same-Sex Marriage and the Coming Antidiscrimination Campaigns Against Religion," in Same Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson (New York: The Becket Fund for Religious Liberty and Rowman & Littlefield Publishers, Inc., 2008), 104.
  2. Larry W. Yackle, Parading Ourselves: Freedom of Speech at the Feast of St. Patrick, B.U. L. REV 73 (1993): 791, 792; cited in Kmiec, in Same Sex Marriage and Religious Liberty, 104.
  3. Church of Jesus Christ of Latter-day Saints, "The Divine Institution of Marriage," (13 August 2008).
  4. Church of Jesus Christ of Latter-day Saints, "The Divine Institution of Marriage," (13 August 2008).
  5. Anthony R. Picarello, Jr., "Introduction," in Same Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson (New York: The Becket Fund for Religious Liberty and Rowman & Littlefield Publishers, Inc., 2008), xi.
  6. 6.00 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 6.09 6.10 6.11 6.12 6.13 6.14 6.15 6.16 6.17 6.18 6.19 6.20 6.21 6.22 6.23 6.24 6.25 6.26 6.27 6.28 6.29 6.30 6.31 6.32 6.33 6.34 6.35 Marc J. Stern, "Same-Sex Marriage and the Churches," in Same Sex Marriage and Religious Liberty: Emerging Conflicts, edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson (New York: The Becket Fund for Religious Liberty and Rowman & Littlefield Publishers, Inc., 2008), 1-57.