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Religious freedom v. legal rights?

25 September 2015

The US could face a two-tier system over gay weddings, says Bill Countryman

SINCE the Supreme Court declared same-sex marriage legal throughout the United States this summer, some conservative Christians have been expressing anxiety that this shift threatens their religious freedom. Some of the anxiety is baseless. For example, some have claimed that the government will soon be forcing conservative pastors to officiate at same-sex weddings. Nothing could be less likely. Even though ordained persons act as agents of the State in conducting marriages, they have always been entirely free to obey the restrictions of their own faith in the matter.

Difficulties arise more easily in the context of secular ceremonies, which are typically provided by judges. As representatives of the State, do such persons have the right to refuse to marry a same-sex couple on the grounds of their own faith, as some have declared that they will? If so, what recourse do those couples who are refused have? Both questions need attention, which state governments are just beginning to give.

A related issue shows up in the widely reported case of Kim Davis, a county clerk in Kentucky, whose office is — as usual in the US — the issuer of marriage licences. She has refused to issue any licences at all, because she believes that it would imply her approval of same-sex marriages. For a while, this meant that there was no access to legal marriage for any couple, straight or gay, in that county. On federal-court insistence, her subordinates are now issuing licences.

Ms Davis’s objection seems to be that the official forms require that her name be printed on them. While changing the forms might in itself be a small step, the governor has been reluctant to proceed immediately, since it would require the expense of calling the state legislature into special session.

More broadly, the question has been raised whether religious conservatives may refuse to perform usual services such as renting space or providing flowers for same-sex weddings. To say that they are free to refuse would seem to set up a kind of two-tier system of citizenship, reminiscent of the bad old days of racial segregation, when African-Americans had minimal access to the amenities of the larger society. (Segregation, too, could claim a religious foundation.)

There are difficulties on all sides. Some conservative Christians feel that they may have to avoid public office and certain kinds of businesses in order to keep their consciences clear. On the other hand, de jure rights are not much good to gay and lesbian people if they can be freely denied de facto on grounds of religious conviction.

Of course, freedom of religion in the United States, even as a constitutional right, has never been absolute. In a civil society, one’s religious convictions cannot justify depriving others of their legal rights. Public officials and businesses must find ways to ensure that all law-abiding citizens are treated equitably. For Christians, in any case, this would seem to be a corollary of the commandment to love one’s neighbour. 


The Revd Dr Bill Countryman is Professor Emeritus of Biblical Studies at the Church Divinity School of the Pacific in Berkeley, California. He blogs at www.billcountryman.com.

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