Mention the expression freedom of religion to any political junkie and you are bound to get a rise out of him. Actually, whenever you mention politics and religion in the same sentence, you are bound to get someone's blood boiling. But it seems as if these two subjects have been intertwined in the news a lot these days, appearing in stump speeches of presidential candidates or in front of Congressional committees. The Empire State tackled an issue nearly a year ago that intertwined politics and religion when the New York state legislature passed the Marriage Equality Act, granting same-sex couples the right to marry.
An eleventh-hour provision to the bill ensured its passage in the Senate, where similar bills had failed in previous years. This provision exempted certain non-profit organizations, religious institutions and their affiliates from accommodating or providing services for a same-sex marriage. For instance, the Knights of Columbus, a Roman Catholic fraternal organization, would not be forced to rent its social hall for a same-sex wedding. The exemption also provides that no civil suit can be brought against any of the exempt organizations. Furthermore, the groups' refusal to provide accommodations and services will not have an effect on any benefits these organizations receive from the government, either in the form of monies or other exemptions.
While religious leaders hailed this exemption as protecting the religious freedom of these organizations, some claimed the exemption did not go far enough. Individuals, they argued, should be covered under the exemption just like the religious institutions. As the law stands now, individuals can be sued for refusing to provide services for a same-sex marriage. Those advocating for an exemption for individuals pointed to a variety of lawsuits in other jurisdictions against individuals sued for refusing to provide services that they claimed violated their religious beliefs. For example, outside of New York, individuals have been sued for discrimination in refusing to photograph a same-sex marriage commitment ceremony, operate on a lesbian patient and treat a homosexual in therapy. While this may seem to make a strong case for extending the exemption to cover individuals, including individuals will likely cause more harm than good in the long run.
Allowing individuals the option to refuse to lend their services for same-sex marriages could be used as a veil for bigotry and discrimination. A homophobic business owner, who never participated in a religious service in his life, could claim his deeply held religious beliefs in refusing to grant his services for a same-sex wedding, when the real reason is his bigoted discriminatory views against homosexuals. This also poses a problem for courts that would have to determine whether or not an individual has deeply held religious views on same-sex relationships, especially given the sheer number of religions and sects. By restricting the exemptions to religious organizations and institutions tied to religious organizations, courts will not have to look to an individual's subjective beliefs — simply whether or not the organization being sued falls within the exemption created by the legislature.
Increasing the exemptions to cover individuals could also lead to problems in other areas of the law. For example, there may be Christians or adherents of other religions who view abortion as a much greater sin than same-sex marriage. Expanding this exemption to cover individuals might lead religious freedom advocacy groups to lobby for exemptions for any conduct that an individual finds reprehensible based on his religious beliefs. This scenario could lead to pharmacists refusing to sell birth control pills to women and doctors refusing to perform life-saving surgery to unwed mothers. Both contraception and premarital sex are deeply condemned by the Catholic Church, and other religious institutions, but it would not justify allowing individuals to pick and choose whom they deal with, determined by who leads a life closest to the tenets of their faith.
"What about government workers?" some asked. If an exemption were to cover individual business owners, surely it would have to include individual government workers who find homosexuality contrary to their religious beliefs. An exemption to government workers, however, would be even more devastating than an exemption to individual business owners would be. An elected town clerk from the Finger Lakes region of New York refused to sign all same-sex marriage licenses because she believed God has condemned homosexuality as a sin. She then arranged for a deputy to sign such marriage licenses by appointment. Civil rights advocates have called this unacceptable, especially considering how gays have fought for so long to achieve marriage equality. Now the couple is handed an undue burden of finding either a deputy clerk, or a clerk from another town, to process their marriage papers.
What good does it do that the government giving same-sex couples the right to marry if no one is willing to acknowledge that right? It would be reasonable that a Catholic Church would refuse to perform a same-sex marriage; but is it reasonable that a florist not provide centerpieces or a photographer not provide pictures? It would be even more alarming if the government official refuses to acknowledge the couple's right to marry. If all these individuals and organizations were exempt from civil suits, what recourse would be left for same-sex couples?
While some New Yorkers did push for an individual exemption, the legislature was right to extend it only to religious institutions and their affiliates. The exemption has created an appropriate balance between civil liberties and religious freedom. States looking to grant same-sex couples the right to marry should look to the model set forth by the New York legislature.
Michael Pinto is the Associate Managing Editor of the Journal of Civil Rights and Economic Development. His internship experience includes positions with the Honorable Judith McMahon of the New York Supreme Court and with Mischel & Horn, P.C.
Suggested citation: Michael Pinto, Marrying Religion and Civil Rights in New York, JURIST - Dateline, Sept. 11, 2012, http://jurist.org/dateline/2012/09/michael-pinto-civil-rights.php.
This article was prepared for publication by Michael Micsky, an associate editor for JURIST's student commentary service. Please direct any questions or comments to him at firstname.lastname@example.org