Monday, April 07, 2008
Conservatives claim that legalizing gay marriage jeopardizes (First Amendment) religious liberties
Back in 1980, before the coming crisis with AIDS was publicly known very much, the gay community in the south, particularly Dallas, where I lived then, was dealing with the likelihood of the need for assistance from an expected influx of Cuban refugees. There was an expectation that the refugees would include many gay men, fleeing Communist Cuba (remember the film “Before Night Falls”). There was talk, especially within gay churches, as to how they would be housed. I thought about becoming involved, and even took a Spanish course in downtown’s El Centro College (and the term was refugiados cubanos).
In September 1980 I went to talk to Catholic Charities about this, in their low rise facility on Lemmon Ave., ironically in Oak Lawn and the heart of Dallas’s “gay neighborhood”. I met a young man named Mr. Perez inside, and after a few sentences, I heard the words “But the fact that you say you are gay ends this conversation.”
That incident comes to mind, as I look at an op-ed on p. 19 of the Monday, April 7, 2008 DC Examiner, by Roger Severino, “Legalizing gay marriage will spark lawsuits against churches,” link here. He discusses, besides the legal outcome (of Goodridge) in Massachusetts, current litigation over same-sex marriage in California and Connecticut. He tries to argue that constitutionally guaranteed religious liberty could be undermined by decisions favoring gay marriage.
Why? Largely because religious charities often consider legal marriage (and expect to find opposite sex couples and parents) when they deliver services. They often run into state laws, including public accommodations laws, that prohibit discrimination already on the basis of sexual orientation. In the situation I mention above in Texas, there was no such law, but in some other states Mr. Perez probably could not have said (at least today, if the circumstances repeated) what he said then. Severino writes that in Massachusetts, Catholic Charities was forced out of the adoption placement business as an indirect result of the state’s definition of same-sex marriage. The big problem with Severino's argument seems to be his presumption that the delivery of services by charities needs to be intertwined with the support of government and the state, a situation that libertarians have always wanted to decouple.
In this regard, it’s understandable that some states (as Maryland now proposes) will want to consider defining-down “marriage” as civil union for everyone, and then write laws say that churches and private charities are free to treat couples any way they like in the assignment of services, as long as they don’t take public monies. That’s hard to pull off. When I was editor of The Quill for Gays and Lesbians for Individual Liberty in the 1990s, Gene Cisewseki wrote a cutting 1996 op-ed “License Expired” (direct link) (or go to GLIL and look under archives in a separate HTML frame).
Of course, this gets back to the privileges and perks (and yes responsibilities) that marriage brings. Sometimes unmarried people have to subsidize them. That’s part of the rub. A pastor David Ensign at Clarendon Presbyterian Church in Arlington dramatized the issue when he refused to perform legal heterosexual marriages in his church, making couples go to the County for the official legal recognition. For example, see the story by Elizabeth Weill Greenberg in The Washington Blade, Nov. 25, 2005, “Presbyterian church nixes weddings for all: protest against ban on gay marriage by Va. Presbyterians,” here.