Same-sex marriage, conscientious objection and the law

Peter Steinfels in The New York Times

The movement toward legalizing same-sex marriage in New Hampshire has hit a bump. Gov. John Lynch, a Democrat, said last week that he would sign a same-sex marriage bill only if it included new language expanding protection for religious institutions that might object to same-sex marriage. On Wednesday, the state’s House of Representatives rejected that amendment. So for the moment, the matter is stalled in New Hampshire.

But whatever the outcome, Mr. Lynch may have moved the debate over same-sex marriage forward, at least by isolating it from the question of how it affects religious groups.

For some time, scholars have debated this issue, and some are now urging states considering same-sex marriage laws to include strong protections for religious organizations. Some are even suggesting protections for individuals and small businesses who offer services for weddings — like photographers, florists, caterers, bakers, wedding planners and musicians. The argument is that these individuals and businesses might have religious objections to gay couples’ marrying and could be exposed to sizable fines or strong penalties under nondiscrimination statutes.

Can the same logic be used to argue for legal protections for opponents of interracial marriage?

Comments (6)

This short article got me thinking back to the whole issue of conscience and the war back during the Viet Nam days. Although some objectors may have had the protection of the law, I suppose that lots and lots of folks paid for their stand against the war in one way or another. Are we being asked to allow folks to take a stand without a cost? Is that what we can expect when our beliefs don't match that of the general population? Really? Is that what straight culture has offered to LGBT folks for centuries? Or is it preferential treatment for religious institutions and their people? Now that gets messy.

I suggest we consider this approach to conscience issues regarding same-sex marriage: let's just get completely out of the business of being functionaries of the state regarding civil marriages. Civil marriages should be contracted by the couple signing appropriate papers at the courthouse. (I am NOT suggesting that the state provide civil "ceremonies" -- in fact I suggest that they be forbidden to do so. The state's only interest is in the contract.) Couples could then arrange for any ceremony they (or their faith community) might wish -- the Celebration and Blessing of a Marriage, dancing in a field of daisies, parachuting out of an airplane together, or whatever. This would not be the state's concern, and religious or other groups could impose whatever conditions they like. If they want to forbid mixed-race marriages, that would be immoral and obnoxious, but not illegal. If they want to forbid same-sex marriages -- well, that's the issue currently at hand, isn't it?! But in any case, nobody would have any legal obligation to take part in a celebration following the signing of a civil marriage contract. Particularly protected would be the canonical prerogative of Episcopal clergy to decline to solemnize any marriage, under Canon I.18.4.

Not one of the comments on this thread - or in fact the thread itself - offers any sort of solution to the problem at hand.

Namely, that gay couples who wish to be married (for any number of reasons, including providing protection to their children, leaving their estates tax-free to their spouses, visiting their spouses in the hospital, marrying their foreign-born partners, etc.) cannot be married.

I agree with BSnyder that those who claim their religious sensitivities will be crushed if states give same-sex couples full access to civil marriage trivialize the notion of discrimination. That a religious florist might be forced to sell to a same-sex couple is nothing compared to a same-sex binational couple who are forced to choose between separating or going into exile together because the federal government fails to recognize their legal marriage. New York State gives at least 1324 rights and protections to married couples and their families and the federal government gives them at least 1138. Fortunately for my husband, Murdoch, and me New york State now recognizes our Canadian marriage but the federal government still doesn't. Does not Steinfels understand that we are still denied 1138 protections and if we go to another state we can lose even the state protections?

Civil Marriage equality would affirm religious liberty by allowing each denomination and/or congregation to marry whomever they please. Currently, liberal denominations such as the United Church of Christ, the Unitarians, and the Quakers, groups which have gone on record as supporting both civil and religious marriage, are prevented from treating all their members the same because the federal government and most states do not recognize same-sex couples as couples. The conscience of liberal denominations is violated every day and their members are not allowed to access legal protections other Americans have.

Gary Paul Gilbert

Why does this have to be so difficult, can't civil marriage be available to everyone regardless of sexual orientation, gay or straight, and sacramental marriage be offered to whomever by those faith traditions that are inclined to do so?

Richard Warren

Bill, civil marriage is a civil contract and has nothing to do with religion. Priests who marry couples in church work for both the state and the church. The state is the only entity which can give legal protections. If a couple need a divorce, only a state court can grant it. Nobody can force a church to marry any particular couple. For example, the Roman Catholic Church, which opposes divorce, chooses not to remarry divorcés. In the Episcopal Church, Canon I.18.4 is not in jeopardy.


The issue is not the freedom of clergy to chose which couples they will marry but rather pertains to nonreligious functions. A Methodist Church in New Jersey, for example, was renting out a hall to anybody who wanted to give them money. But they refused to rent to a same-sex couple for a wedding banquet. The courts ruled they either had to rent to everybody or shut their hall. They were denying access to a public accommodation. The issue had nothing to do with religion.

Churches are free to decide who gets a pew but they cannot discriminate for nonreligious activities, especially if they receive state funding.

The more exemptions churches seek it will only become clearer that their motive is bigotry.


Gary Paul Gilbert

Add your comments

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)

Reminder: At Episcopal Café, we hope to establish an ethic of transparency by requiring all contributors and commentators to make submissions under their real names. For more details see our Feedback Policy.

Advertising Space