by Stanley Carlson-Thies

“Marriage equality” is the term people use for when a legislature or court declares that same-sex couples may join opposite-sex couples in getting married. But unless legislatures specifically act to protect religious freedom, marriage equality will result in marriage inequality for faith-based organizations. The Supreme Court can, and should, tell legislatures to protect religious freedom.

Increasingly many in our society are convinced that a marriage between two people of the same sex is no different morally than a traditional marriage, which unites a woman and a man. But many citizens do not agree: for religious, historical, or other reasons, they are convinced that actual marriages are unions of opposite-sex couples. The same-sex unions may be legal, they may bring joy to the couples involved and to many others, but they aren’t actually marriages.

What should the law do about these contrasting views? A common prescription is marriage equality: a court—the US Supreme Court—or legislature should institute marriage equality, the legalization of same-sex with opposite-sex marriages. Such action, many say, will bring about, at last, equality between progressives and traditionalists, between those who believe in same-sex marriage and those who adhere to the traditional view.

But such a court decision, or legislative action, in fact brings not actual equality but rather enforced adherence to one of the two views. Keeping LGBT conduct and relationships illegal in the past upheld the traditional view of what is morally right and what ought to be socially accepted. Bringing in marriage equality—forbidding discrimination against LGBT conduct and relationships—does not give our society a new pluralism and position of tolerance. Instead, it will enforce the progressive view—same-sex marriages are no different than opposite-sex marriages—over the traditional conviction that marriage is a status which only fits man-woman couples.

Why is that? When people and organizations are required, due to marriage equality, to ignore the difference between same-sex and traditional marriages, then those who are sure there is no significant moral difference can freely act in accordance with their moral convictions. But those with the traditional view now must often act against their moral and religious convictions.

At home and in private life, they can still act consistently with their convictions about marriage, and their church or synagogue or mosque will still only perform actual marriage ceremonies—no uniting of same-sex couples (and no celebration of cohabiting couples, and, quite possibly, no accommodation of people who do not remain faithful in marriage).

But the law will require them in public life to go against their convictions. The faith-based adoption agency may be required to ignore its conviction about marriage and place children with same-sex married couples (and with cohabiting heterosexual or same-sex couples). The marriage counselor may be forbidden by professional ethics and licensing standards to decline to provide marriage counseling to a same-sex couple. A religious college and a faith-based retirement home may be required to provide housing to same-sex married couples, in clear violation of the convictions about marriage, life, and religion of the respective institutions. And so on.

Marriage equality brings legal intolerance of the view that marriage is a status reserved by God (or nature) to opposite-sex couples. But it need not. Legislatures may—and should—enact religious accommodations so that people and organizations that are religiously committed to traditional marriage may live consistently with their convictions in public life as well as private life, as far as can be made feasible. The adoption rules can allow two kinds of adoption agencies to co-exist. Marriage counselors committed to traditional marriage can be authorized along with marriage counselors who believe same-sex and traditional marriages are essentially the same. Colleges that believe in marriage equality and those that don’t can both be permitted to have housing policies that are consistent with their respective beliefs, and the same for retirement homes.

This would be true marriage equality, true pluralism, and true tolerance.

And while the Supreme Court cannot require it—it will make a decision about how states may or must define marriage, and not about adoption policy, or marriage counselors, etc. (decisions that legislatures must make)—the Supreme Court can take clear notice of the problem and tell state legislatures that they must find a way to honor personal and institutional religious freedom when they redefine marriage to include same-sex couples.

Here’s how the point is made in the amicus brief submitted to the Supreme Court by top church-state experts Douglas Laycock, Thomas Berg, and others—supporters of same-sex marriage and also of religious freedom:

“The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.

The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages. . . .

“If this Court finds a constitutional right to same-sex civil marriage, it must attend to the resulting issues of religious liberty. . . .

“Of course the Court cannot render advisory opinions on specific cases, but it should indicate that it understands the range of religious-liberty implications that will have to be addressed. The issues are judicially manageable, but this Court must acknowledge their existence, so that lower courts and legislatures will take them seriously when they arise in the wake of this Court’s decision.”