Professor Bainbridge...on law, politics, religion, culture & food

Will Churches have to Perform Gay Marriages?

The Anchoress argues that the question is raised by the California Supreme Court’s ruling on gay marriage. Before you tell me that she’s being alarmist, consider that Piero A. Tozzi wrote in 47 J. Cath. Legal Stud. 167 that:

As the indomitable Maggie Gallagher has pointed out, once same-sex unions are legitimized as being on par with marriage, State coercion of societal acceptance of the new norm soon follows. Religious organizations may be stripped, for example, of tax exemptions on the ground that they unjustifiably discriminate by refusing to countenance same-sex commitments as being the equal of marriage between a man and a woman. This happened recently in New Jersey, where the State Commissioner for Environmental Protection, Lisa Jackson, decreed that a beachfront pavilion owned by the Methodist Ocean Grove Camp Meeting Association in a Jersey shore town is no longer exempt from state real estate tax due to the Methodists’ refusal to permit the performance of same-sex ceremonies on their property. See Maggie Gallagher, Can New Jersey Punish Methodists for Marriage?, Townhall.com, Sept. 19, 2007, http:// www.townhall.com/columnists/MaggieGallagher/2007/09/19/can_new_jersey_punish_ methodists_for_marriage; see also Roger Severino, Or for Poorer: How Same-Sex Marriage Threatens Religious Liberty, 30 Harv. J.L. & Pub. Pol’y 939, 942 (2007) (“The movement for gay marriage is on a collision course with religious liberty.”); cf. Meghan J. Ryan, Can the IRS Silence Religious Organizations?, 40 Ind. L. Rev. 73, 84-85 & nn.95-96 (2007) (pointing out that while the Church’s teaching on abortion ethics date back nearly two millennia, it only recently has been “co-opted by the political sphere,” though the ironic result of State intrusion into this realm may be to threaten the tax exemption of religious organizations for simply expounding upon fundamental moral principles from the pulpit during the campaign season).

Likewise, Edward Zelinsky wrote in 27 Cardozo L. Rev. 1161 that:

Deregulating marriage avoids some difficult church-state conundrums posed by gay marriage and opposition to it. Suppose, for example, that efforts to amend the Massachusetts constitution fail, leaving same-sex marriage mandated by the Massachusetts Supreme Judicial Court. Suppose, as I suspect is likely, that many religious institutions refuse to perform same-sex marriages. Will these churches, synagogues, and mosques lose their property tax exemptions on the ground that their refusal to perform gay and lesbian marriages violates constitutional norms of equality?

Finally, Maggie Gallagher wrote in 2 U. St. Thomas L.J. 33 that:

Mary Ann Glendon and several legal scholars recently warned: “[C]hurches and other religious organizations that fail to embrace civil unions as indistinct from marriage may be forced to retreat from their practices, or else face enormous legal pressure to change their views. Precedent from our own history and that of other nations suggests that religious institutions could even be at risk of losing tax-exempt status, academic accreditation, and media licenses, and could face charges of violating human rights codes or hate speech laws.” Mary Ann Glendon et al., Private Legal Opinion Memorandum to the Massachusetts Catholic Conference, http:// www.cwfa.org/images/content/MCCOpinion.pdf (Mar. 5, 2004) (citing Bob Jones U. v. U.S., 461 U.S. 574, 586 (1983) (“an institution seeking tax-exempt status must… not be contrary to established public policy”)); see Levin v. Yeshiva, 754 N.E.2d 1099 (N.Y. 2001) (finding private university housing policy distinguishing between married and unmarried couples to constitute sexual orientation discrimination in violation of city human rights ordinance); Trinity W.U. v. College of Teachers (British Columbia), 2001 Carswell BC 1017 (Canada) (reversing decision of the College of Teachers to deny accreditation to Trinity Western University based on its code of conduct prohibiting homosexual behavior); CKRD re Focus on the Family, Canadian Broadcast Standards Council Decision 96/97-0155 (Dec. 16, 1997) (available at http://www.cbsc.ca/english/decisions/decisions/1997/971216i.htm) (finding that radio station CKRD-AM violated the Canadian Association of Broadcasters’ Code of Ethics in broadcasting a segment of the Focus on the Family radio program on February 9, 1997); Liam Reed, Legal Warning to Church on Gay Stance, Irish Times 1 (Aug. 2, 2003) (Irish Council for Civil Liberties warning that Roman Catholic Church teaching on homosexual unions could violate Ireland’s 1989 Incitement to Hatred Act); Religion News Serv., Gay Group Sues After Sermon, Wash. Post B7 (Jan. 3, 2004) (lawsuit alleging “slander and incitement to discrimination” filed against Cardinal Antonio Maria Rouco Varela after comment in sermon suggesting that same-sex marriage would bring down the country’s social security system); see also Boy Scouts of Am. v. Wyman, 335 F.3d 80 (2d Cir. 2003) (upholding Connecticut’s exclusion of Boy Scouts from state employee workplace charitable campaign due to organization’s policy on homosexual scoutmasters); Catholic Charities of Sacramento v. Super. Ct., 32 Cal. 4th 527 (Cal. 2004) (ruling that Catholic Charities do not fall within the religious exemption of a statute requiring contraceptive coverage as part of employee health insurance plans and are not constitutionally protected from application of the statute).

So what do you think? Real concern or scare tactic? (I wonder what my friend and UCLA colleague Eugene Volokh thinks.)

Personally, I think it’s time to sever the link between the religious sacrament of marriage from the civil status of a domestic partnership, civil union, or whatever you want to call it. Make people go the marriage equivalent of the DMV to get a civil union license, just like they go to the DMV for their driver’s license. If some people then want to go to Church for a wedding or to a Las Vegas “chapel” for an Elvis-themed service, or whatever, that’s fine.

Update: Rick Garnett:

The latest episode of the ABC series, “Boston Legal”—another project of the reliably and tediously anti-Catholic David Kelley—was called “The Gods Must Be Crazy”, and was about (among other things) a woman who sues the Archdiocese, seeking to have the Church’s tax-exemption pulled, because the Church has discriminated against her, by not ordaining her a priest.  She wins.  Relevant to her argument are assertions regarding executing witches, condoning slavery, running the Inquisition, etc.

But, this won’t happen in the real world . . . right?