Muddy Waters

Five weeks ago proponents of gay marriage moved one step closer to winning the marriage war: thousands gay couples in America’s conservative heartland can now marry. But events in Coeur D’Alene, Idaho, suggest the possibility of greater changes. At the center of the debate is the Hitching Post wedding chapel. The proprietors, ordained minsters, say marrying same-sex couples is incompatible with their religious beliefs. However, a local ordinance prohibits them from turning away same-gender marriage hopefuls.

Lawyers from both sides are now arguing an important question: is a conscientious objection to a required action enough to place a religious businessperson beyond the reach of an anti-discrimination ordinance? The judicial system’s answer could disappoint many conscientious Americans.

In the late 19th century Supreme Court justice John Marshall Harlan famously argued that social equality should trump private attitudes and beliefs. Thus quasi-public businesses could be required to serve all citizens:

The authority to establish and maintain them [entertainment venues] comes from the public…A license from the public to establish a place of public amusement imports in law equality of right at such places among all the members of that public.

More importantly, the first amendment’s promise that all Americans can freely exercise their religion has not consistently insulated conscientious Americans from laws that impinge on their freedom. When 19th century jurists were faced with a religious practice that violated societal mores – polygamy – they concluded the first amendment did not protect such behavior:

So here, as a law of the organization of society…it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Similarly, in the late 1980’s Oregon denied unemployment benefits to individuals who had been fired for ceremonial drug use. The Supreme Court reached the following conclusion:

But to say that a nondiscriminatory religious practice exemption [from an otherwise applicable law] is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

State regulations do not, however, always supersede the first amendment’s free exercise clause. In 1943 the Supreme Court declared that students who had religious objections to the daily pledge of allegiance could not be forced to violate their conscience. Then, almost three decades later, the Supreme Court allowed Amish families with religious objections to education beyond the eighth grade to disregard compulsory attendance laws. Thematically, these two cases were similar: over-zealous state governments had deprived private individuals of their constitutional rights.

Unfortunately the Hitching Post’s narrative reaches far beyond an individual or a family: weddings are provided as a matter of business. Hence a person can fairly argue that while the Hitching Post is run by religious proprietors, it has more in common with a quasi-public business than a scrupulous student or a religious family. Moreover, opposition to gay marriage is quickly becoming as socially unacceptable as polygamy was in 19th century America. If experience is any guide, highly stigmatized religious behaviors do not fare well in front of the United States Supreme Court.

If the Supreme court eventually decides against the Hitching Post (or a similar entity), the legal debate will swing towards recalcitrant houses of worship. It is unlikely that a strictly religious organization will ever be forced to marry same-sex couples – but they might be forced to trade their tax exempt status for freedom. Religious entities must carefully plan for the day when their objections to gay marriage lead to serious financial consequences.

America is rapidly changing; a decade and a half ago gay marriage was avant-garde. But the free exercise of religion (or non-religion) is still a fundamental right. Where a conflict between religious exercise and societal expectations exist, the conscientious exercise of one’s religious beliefs should be given all possible deference. The Hitching Post’s proprietors should be allowed to exercise their religious judgment regarding the suitability of potential customers for the ceremonial services they offer.

Regardless of the outcome in Coeur D’Alene, the debate over the intersection between religious freedom and equality is bound to continue for years to come. Hopefully the discussion will be marked by toleration and civility.

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