Stanley Carlson-Thies, April 14, 2016

The prime season for state legislative action this year—from January through April—has been filled with proposals to protect the freedom of religious people and organizations to act consistently with their deeply and sincerely held religious beliefs that marriage is a union of a man and a woman. More than 100 bills have been introduced, although only a few have sparked national attention, such as the Georgia bill that drew the governor’s veto and high-profile opposition from some business and cultural leaders. The reason for the bills? The Supreme Court’s same-sex marriage decision (Obergefell v. Hodges) noted that it would cause religious freedom problems but it did not (and could not) resolve them.

The Obergefell decision last summer requires every state to allow same-sex as well as opposite-sex couples to get married. But what is it that ordinary people and civil society organizations must do with respect to the same-sex marriages that now are legally equivalent to heterosexual marriages? Do clergy have to agree to perform same-sex weddings? Is it illegal discrimination if a religious school declines to hire a teacher in a same-sex marriage, on the ground that the religious beliefs honored by the school do not acknowledge the new definition of marriage? And—very controversially—should it be legal for a person or small company that offers wedding-related services (wedding photography or videos, wedding cakes, a commercial facility for wedding receptions, etc.) to decline on religious grounds to assist in a same-sex wedding event?

The Obergefell majority opinion and dissenting opinions acknowledged that such questions have to be resolved by government. The majority opinion, written by Justice Kennedy, far from simply declaring that all questioning of marriage equality is wrong and must be suppressed by government, says that “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Religious organizations and persons, he wrote, should be given “proper protection,”as required by the First Amendment.

And, in fact, states that adopted same-sex marriage by legislative action, before the Obergefell decision, took care to incorporate various protections for religious organizations and persons, as Chief Justice Roberts points out in his dissent. But creating such accommodations for religion is not a task that courts can accomplish, he noted; it is the job for legislatures.

And so, this state legislative season, the first after Obergefell, has seen a wide range of efforts add in, after the legalization of same-sex marriage, various protections for religious freedom.

Some of the bills have aimed to provide broad protection. In states that don’t yet have them, there are efforts to enact a state version of the federal Religious Freedom Restoration Act (RFRA). RFRAs provide the opportunity for persons and organizations to ask for a day in court if government takes action that substantially burdens their religious freedom. The government is then required to show it has a compelling reason for its action and that there is no less burdensome way for it to achieve its compelling interest.

Other bills aim to provide general protection for people and organizations not to be penalized by government because of their commitment to traditional marriage. And yet another set of bills have addressed specific issues: enabling faith-based adoption agencies to maintain a policy of placing children with traditional families, ensuring that religious student clubs can require their leaders to be true to the religion, protecting the ability of counselors with a conscience concern to refer a person to another counselor. And some bills have taken on the difficult challenge of transgender rights in sensitive areas such as bathrooms and showers.

The transgender measures, such as the North Carolina bill that was signed into law but will continue to be modified, deal more with privacy concerns and how to ensure equal treatment for everyone using one-sex facilities than with religion, as such. Yet they are a sign of how the Obergefell decision has brought to the foreground not just same-sex marriage but LGBT rights more generally—and a sign of how questions of religious freedom cannot be neatly separated from our society’s deep divide over moral questions concerning human sexuality.

Most of the bills have not succeeded due to early opposition or lack of support in legislative committees, or when later considered by the state legislature as a whole. Georgia’s broad religious-freedom bill was cobbled together at the last minute, is regarded as inadequate by its supporters, and, given Georgia’s lack of LGBT protections, was successfully mischaracterized by opponents as a one-sided effort that would advance, not diminish, injustice. Mississippi’s even broader bill did not draw the same focused opposition and it was signed into law by its governor.

A few observations. Many of the bills specifically protect clergy and houses of worship from penalties if they decline to assist with same-sex weddings—and yet churches and pastors have strong First Amendment protections already. Including them in protective legislation simply, and falsely, makes it seem that secure rights are insecure. Most controversial are efforts to protect businesses involved with weddings and wedding receptions from a requirement to assist in weddings they believe are religiously wrong. Shouldn’t businesses be required to serve all customers? And yet people and companies have certain expressive rights, and the market is exactly the place where a diversity of services is offered.

Unfortunately, in this heated environment there is also much opposition to allowing religious organizations such as adoption agencies, religious student clubs, and religious schools and colleges, to continue to operate consistently with their deeply rooted religious convictions about marriage. American society, and in particular the poor, sick, addicted, hungry, and homeless, count on faith-based organizations as essential elements in our diverse social safety net. And Americans generally understand the value of having diverse service providers because people seeking education, health care, help with an unexpected pregnancy, or other matters are themselves diverse religiously and morally.

But when it seems to many that the choice is either to respect LGBT rights or to protect the freedom of distinctive religious practices and organizations, all too many are ready to curtail the freedom of faith-based services. And yet, when a faith-based adoption agency is legally free to specialize in placing children with religious, married, mother-father families, this freedom does not prevent gay married couples, cohabiting couples, or non-religious people from choosing one of the many other private adoption services. Despite uninformed press commentary, when a general religious freedom bill provides that a religious organization can be religiously selective in hiring staff, the bill is not adding to discrimination but only restating a well-established principle in employment law.

Our society is committed to equality and fair treatment for everyone, and it is also committed to respect for religion and religious institutions. Both of these commitments have to be honored as legislatures wrestle with the consequences of Obergefell, not just one. That is no easy task, given the diversity of convictions in American society about religion, marriage, and human sexuality. A lasting solution will have to deal not only with same-sex marriage but with LGBT rights more generally. Now that same-sex marriage is legalized, legislators must ensure that as they act to advance protections for the rights of persons and organizations who are sure that LGBT conduct and relationships are no different than heterosexual conduct and relationships, they take care to strongly protect the rights of persons and organizations who remain committed to historic religious convictions about sexual morality and sexual relationships.

Our society has divergent moral and religious convictions, and so is naturally divided on these issues. Only a resolution that can be accepted as fair on all sides will be lasting, providing a legal framework within which advocates of the different positions can continue to appeal to those who disagree, showing in their lives and organizations the values they believe are true and good for everyone.