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Should the Marriage Battleground Shift to Religious Freedom?

After New York vote on same-sex marriage, conscience questions draw more emphasis.
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Was the shot heard 'round the evangelical world fired June 24 in New York?

The passage of a same-sex marriage law by that state's Republican-controlled Senate sent a clear message, a leading religious liberty expert says.

That message: Religious conservatives who advocate traditional marriage must shift their focus to fighting for religious freedom.

"It's just a matter of time before it's possible to enact these bills in more and more states," said Douglas Laycock, a law professor at the University of Virginia. "The greater the support, the less leverage anyone trying to get a religious liberty provision [will have]. The time to get protection for religious liberty in these bills is now, while they're still difficult for the supporters to enact."

Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance, isn't ready to advocate such a drastic detour—at least not yet.

But as more states pass civil-union and same-sex marriage laws, he acknowledges a need for gay-marriage opponents to press for language in such laws that protects faith-based organizations.

"The religious-freedom consequence of these changes is increasingly recognized and increasingly seen as something that needs to have a focus of its own," he said.

In New York, in fact, "more expansive protections for religious organizations" helped win support from four Republicans who voted with the Democratic minority and put the bill over the top, The New York Times reported. Carlson-Thies complained, however, that lawmakers won the religious liberty exemptions at the expense of sticking with their moral convictions on traditional marriage.

Laycock said the New York law clearly protects churches and religious organizations from having to perform same-sex marriage ceremonies or welcome gay couples into their memberships.

But the language is "so badly drafted" that it's difficult to assess what the impact might be, for example, on a faith-based organization that wants to refuse to provide adoption services to a same-sex couple, he said.

Just a few years ago, a key question in the public square was: Would gay and unmarried couples be allowed to adopt children or serve as foster parents?

Now, the question seems to be: Can faith-based agencies with conscientious objections refuse to place children with gay and unmarried couples?

"It's a question of: Can religious organizations continue to operate for the public good in a way that's consistent with their convictions?" said Jedd Medefind, president of the Christian Alliance for Orphans.

In June, before the New York vote, Carlson-Thies praised the "robust language" in a Rhode-Island civil-union bill that he said offered sufficient protections for religious organizations with sincerely held religious convictions against civil unions.

But that same month in Illinois, which began recognizing civil unions June 1, a Catholic Charities organization in Rockford halted its state-funded foster care and adoption services rather than face potential liability for failing to place children with parents in civil unions. Meanwhile, three Roman Catholic dioceses—Springfield, Peoria, and Joliet—filed a lawsuit seeking confirmation that they're acting within existing law by offering adoption and foster-care services only to married couples and non-cohabiting single individuals.

Similar battles have occurred in the District of Columbia, Virginia, and Massachusetts. Religious-freedom questions will be on statewide ballots in North Dakota and Missouri in 2012.

The ramifications extend far beyond adoption, Carlson-Thies said, touching on, for example, a Christian college's right to hire employees who abide by its sexual standards, or a faith-based drug treatment facility's ability to advertise a mentor position for a husband and wife.

Such organizations should not let states "run roughshod" over their religious freedom, he said: "We ought to stand on our constitutional rights and try to get them into the law, and if they're not gotten into the law, then stand up in other ways."

Laycock is part of a small group of law professors who have been lobbying state legislatures across the nation for religious-liberty provisions in such measures.

Despite his contention that religious conservatives "absolutely" need to change strategy, Laycock stops short of predicting that will happen.

"My sense," he said, "is still that both sides are just dug in and want to completely squash the other side, so the religious conservatives are opposed to any form of same-sex marriage and the gay-rights side are opposed to any form of religious-liberty protection."


Related Elsewhere:

Previous articles on same-sex marriage include:

New York Approves Gay Marriage | Because of the state's large population, the number of Americans living in states that allow gay marriage will more than double. (June 24, 2011)
Same-Sex Marriage Polls: It's All in How You Ask | The poll results seem to run counter to other recent polls showing a majority of Americans support same-sex marriage, but like all polling, the results depend on how the question is asked. (June 22, 2011)
Is The Gay Marriage Debate Over? | What the battle for traditional marriage means for Americans—and evangelicals. (July 24, 2009)

CT covers more political developments on the politics blog.

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