Saturday, 2 July 2011

Gay Marriage: The Coming Clash of Civil and Religious Liberties

Supporters of same sex marriage celebrate after Senate members voted and approved same-sex marriage at the Capitol in Albany, N.Y., 

What does the historic vote on same-sex marriage in New York mean for the rest of the country? Will it play a role if and when the U.S. Supreme Court rules on the California case? Will it propel or impede efforts in other states to legalize gay marriage?
Vows will be said in New York long before those questions find answers, but what can be said for sure is that the New York legislation will nationalize the gay marriage debate in a way that no other step in the long campaign has. "A significantly larger percentage of the country now lives in states with marriage equality for gays and lesbians," constitutional law scholar Erwin Chemerinsky, dean of the University of California, Irvine law school, told TIME. "That is important on so many levels. It shows that the trend continues in this direction and that it is just a matter of time before it is throughout the country. It will help fuel the on-going shift in public opinion."
"The New York vote marks a particular and important shift in the political landscape around same-sex marriage," adds Professor Marc Spindelman of the Ohio State University law school, who has followed gay marriage's serpentine legal path for years. "Who, a few years ago, could have imagined a high-profile Democratic governor leading the political charge for this still-controversial right in a state with a Republican-controlled senate, and with the help of major Republican party donors, to boot?"
And Al Mohler, president of the Southern Baptist Theological Seminary in Louisville, Ky., told TIME that New York's impact on the rest of the country can't be overstated. "The New York vote is massively important — perhaps even pivotal," he said. "This is due, not only to the size of the state's population, but to the political process by which the Governor and leading Republicans pushed this through the New York Senate. We should expect these same tactics to appear elsewhere."
In one sense, the most immediate impact of the New York legislation, beyond the obvious fact that more gays will now marry, is the way the 10 days of political wrangling in Albany came to a head over nearly intractable issues of religious liberty. While Chemerinsky told TIME that the furor was in some ways overblown — "No religion has to marry anyone it does not want to marry. I think that this was a misleading argument," he says — other scholars who have followed the debate for years say there's no denying that expanding gay rights so quickly has created real tensions between laws protecting the freedom of conscience and the newer protections for gays and lesbians.
Gay marriage isn't the first issue to do so, but it's likely to be the most fought over. No one is arguing that the Catholic Church, or any church, must marry a gay couple — and the protections written into law in New York saying so were probably redundant. But the New York law went further than merely restating the constitutionally obvious. It also wrote into law the right for all religious institutions — hospitals, adoption services — and so-called benevolent organizations to refuse to not just marry gay couples but the right to refuse accommodating their weddings, too. For gay couples in New York, good luck finding a Knight of Columbus hall to rent, for instance.
Some saw the religious-based objections to gay marriage as mere pretext for deeper, and harder to express public antipathy towards homosexuality. And others, like Mohler, see the provisions as mere fig leaves for defecting conservatives who wanted cover for their votes n favor of marriage. But whatever their political uses, the religious protections point to one aspect of the New York vote that will resonate throughout the country as the issue advances elsewhere.
"There is certainly a religious liberty issue," Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, told TIME after the New York vote. And it's not just a question for the prelates of the world who might bristle at the idea of the state ordering up gay marriage, a prospect that sent Archbishop Timothy Dolan of New York City into rhetorical overdrive in the days leading up to the vote. Individuals who deeply oppose gay marriage could find themselves pushed to participate in ways big and small — and for that reason the protections in the New York law could become important.
"The 'guy who runs the tuxedo shop' is trying to live his life in accordance with his most deeply held ideals, which is just what gay couples are trying to do," Koppleman says. "The fairly mild religious accommodations in New York law will somewhat ease conflicts of that sort, in a way that is unlikely to significantly injure any gay people."

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