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Demonstrators chant outside the Supreme Court in Washington, Tuesday, March 26, 2013, as the court heard arguments on California's voter approved ban on same-sex marriage, Proposition 8. (Pablo Martinez Monsivais/AP)

Gay marriage is inevitable, supporters and opponents tend to agree, with joy, distress, or resignation. The Supreme Court’s pending rulings on California’s Prop 8 marriage ban and the federal Defense of Marriage Act will influence the progress of the marriage debate, but not the ultimate outcome.

The battle over same-sex marriage isn’t ending. It’s morphing into a fight over religious freedom, as secular businesses and individuals claim First Amendment rights to discriminate against gay couples. Religious institutions and clergy have indisputable rights not to sanctify gay unions (or any unions to which they object for any reasons). Should wedding planners, florists, or limousine drivers enjoy similar rights to refuse to serve gay couples?

Religious institutions and clergy have indisputable rights not to sanctify gay unions … Should wedding planners, florists, or limousine drivers enjoy similar rights to refuse to serve gay couples?

Not in violation of public accommodations law, the New Mexico Court of Appeals ruled last year: Wedding photographer Elaine Huguenin had no right to refuse to photograph a same sex commitment ceremony that violated her religious beliefs. The Court upheld an order requiring Huguenin to pay over $6,600 in attorney fees to lesbian plaintiff Vanessa Willock, who had filed a discrimination complaint against Huguenin with the state Human Rights Commission.

Huguenin offered several arguments in her defense: She claimed that as a photographer, she was not offering “public accommodations” and, in addition, was engaged in expressive activity protected by the First Amendment. But public accommodations laws have generally been applied to a wide range of services, and, the Court ruled, Huguenin’s commercial photography business was not “so inherently expressive.”

If the story of Huguenin’s case stopped here, it would be relatively unremarkable. But she also raised a religious freedom claim, seeking refuge in New Mexico’s Religious Freedom Restoration Act (NMRFRA). In brief, it bars the state from restricting an individual’s religious freedom, even through enforcement of generally applicable laws, absent a compelling public interest. The compelling interest standard is very difficult to satisfy and usually invoked by judges in the course of invalidating a law or its application.

The New Mexico Supreme Court finessed Huguenin’s NMRFRA claim by holding that the Act only applies when a government agency is an adverse party in a case; the plaintiff in this case was a private individual. But the Court’s interpretation of the law was questionable, and Huguenin’s appeal is pending before the New Mexico Supreme Court. Her case is a beginning not an end to cases involving conflicts between religious freedom and anti-discrimination laws.

About one third of the states have enacted religious freedom laws similar to New Mexico’s RFRA. They’re modeled after the federal Religious Freedom Restoration Act, passed by Congress in response to a 1990 Supreme Court case denying Native Americans the right to sacramental use of peyote in violation of state drug laws.

Religious Freedom Restoration Acts are controversial: If they’re consistently construed to favor individual religious beliefs over generally applicable laws, they threaten secular governance in a pluralistic nation. The federal RFRA has been invoked by secular businesses claiming exemptions from the Affordable Health Care Act’s contraceptive care mandate, and now religious conservatives are beginning to invoke state RFRA’s as defenses against same sex marriage and other rights.

The Kentucky legislature, for example, recently passed a religious freedom bill that could effectively immunize religious objectors from gay rights laws. Governor Beshear vetoed the bill, citing, in part, concerns about civil rights, but his veto may be overridden.

If religious freedom claims in gay rights cases prevail, an employer who harbors religious objections to married women working outside the home could legally refuse to hire them.

It’s worth stressing that religious freedom acts providing exemptions from anti-discrimination laws protecting gay people would, in principle, also provide religious exemptions from laws barring discrimination based on race, sex, or religion, among other generally applicable statutes. If religious freedom claims in gay rights cases prevail, an employer who harbors religious objections to married women working outside the home could legally refuse to hire them. An employer with a religious belief in the virtues of child labor could be exempt from laws prohibiting it.

That is an embarrassing legal reality for people like Elaine Huguenin who claim religious defenses against same sex marriage and other gay rights. Overt racial discrimination, among other biased behaviors, is no longer respectable. Gay rights opponents do not want to be seen advocating laws that would allow it, or other socially unacceptable conduct.

Someday, perhaps in the not too distant future, gay marriage will be normalized in many states (as it is in Massachusetts), and overt bias against gay people will be generally unacceptable, even un-American. Someday, religious claims for exemptions from gay rights laws will decline along with the population of religious objectors. Until then their religious freedom claims will multiply and should be taken seriously — which doesn’t mean they should prevail.

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  • J__o__h__n

    If people’s supernatural based bigotries prevent them from doing their jobs, they need to switch careers. A church doesn’t need to marry gays but outside of that narrow exception, people cannot be refused services every other citizen is entitled to.

  • Argentus

    If a self-employed person or owner of a private, small business doesn’t want to serve gays, I don’t see how a law could easily be enforced against them. Besides, if they’re so closed-minded as to limit their businesses that way, in the face of the coming tide, they will lose more than they bargained for. With websites like Yelp and Angie’s List out there, small businesses that don’t serve gays will likely not be able to stay in business. Social media won’t stand for it.

  • Realistic woman

    Since the days of Romeo and Juliet marriage has been a business. In many countries the bride’s family must give the grooms family money in order to make the marriage. To end a marriage the couple gets lawyers and go to court to

    redistribute the wealth that the couple owns together. Marriage is a business.
    When the couple gets married by the justice of the peace, their is no g-d, no
    discussion of babies, just a mention of two making a union. (financial union).
    Why hasn’t this fact been discussed that Marriage is a Business.

  • SallyW

    “If religious freedom claims in gay rights cases prevail, an employer who harbors religious objections to married women working outside the home could legally refuse to hire them.”
    and anyone who objects to that may refuse to do business with that employer. They may also Yelp about it.

  • Jenna Smith

    If a company isn’t gay-friendly, why use their services at all?

    I’m straight, but I have friends and family members who are gay and lesbian. We vote with our $$$ and tell our friends.

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