Gay Marriage and Religious Freedom

This story out of Ledyard, New York, which is a very small town just up the lake from Ithaca, is interesting for a number of reasons. The gist of it is that the town clerk, a self-described "Bible-believing Christian," believes that signing the marriage licenses of same-sex couples would violate her religious convictions. Since New York law requires her to issue those licenses, she has delegated the task of signing them to a deputy clerk. As a result, marriage licenses are only available in Ledyard with a prior appointment. A lesbian couple moved into town from Miami, sought a marriage license and then refused to wait for an appointment, preferring instead to file a lawsuit. On one side is People for the American Way, representing the couple. On the other side is the Alliance Defense Fund. So, first off, this is one of those stories that makes you just sigh, for lots of reasons, which I won't go into because they seem pretty obvious. What the story does bring out, though, is something that will be very different about same-sex couples' push for civil rights from other civil rights movements we've seen over the past few decades.{C}

Although there have always been churches and religious institutions that have espoused racial hatred or supremacy or separation of some sort or another, and although some of the arguments people raised in favor of Jim Crow were religious, they were (and even more so now, are) mostly on the fringe of both society and Christian thought. The bulk of opposition to civil rights was rooted in uncritical tradition and custom. In addition, there was a critical mass—perhaps the bulk of—Christian theological opinion on the side of civil rights. What we see with same sex marriage is somewhat different. There are religious people (myself included) who favor marriage rights for same-sex couples. And most of us can even make religious arguments in favor of our position. But the center of gravity of the pro-marriage position is decidedly secular. On the other side is an opposition that is expressed in almost purely religious terms. And, while I disagree with their theological arguments on theological grounds, I can admit that their position represents the historical mainstream of Christian thinking on homosexuality, one that has prevailed for many, many generations. However one wants to characterize the views of anti-same-sex-marriage advocates, it is impossible to relegate it to the fringe of Christian thought, even contemporary Christian thought. So this sets up a dilemma for same-sex marriage rights that civil rights in other contexts have not had to confront as seriously. Of course,there have been individuals who have claimed a right to discriminate on the grounds of race or, more commonly, gender, for religious reasons. But those claims have been easier to sideline. The fight over marriage is different. Even though it is clear that public opinion is moving in the direction of acceptance of same sex marriage, my sense is that opposition is likely to remain entrenched among religious conservatives.

On its face, the Ledyard town clerk's solution—delegating the task she finds objectionable to a deputy clerk who is willing to perform the duty—seems to strike a reasonable balance. Same sex (and straight) couples in Ledyard get their marriage licenses, and the town clerk can keep her job while remaining faithful to her religious convictions. I can certainly understand the offense that the plaintiffs took upon learning the reasons for the requirement that they make an appointment to receive their marriage license. But, since a straight couple has to go through exactly the same appointment process, I am struggling to understand the deep principle that is at stake. The general counsel of Peope for the American Way says that the town clerk's religious convictions don't give her "the right to use them to relieve herself from doing a major part of her duties." I understand what she is saying as a legal matter—thanks to Employment Division v. Smith, the legal entitlement to special treatment under the Free Exercise Clause has been dramatically narrowed. But I'm more interested in the substance of the matter. What is the genuine harm of allowing the town clerk to delegate this task, as long as the task gets done, albeit with some delay, and as long as it gets done equally for same-sex and straight couples?

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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