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A False Choice: Religious Liberty or Marriage Equality

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Soon after the Supreme Court held the Defense of Marriage Act unconstitutional, a series of strange claims began to surface about marriage equality's impact on religious objectors to same-sex marriage.

Fox News' Todd Starnes reported on a Georgia pastor's fear that "churches will face lawsuits for refusing to host same-sex weddings." Starnes failed to report that neither the federal government nor Georgia bans discrimination on the basis of sexual orientation in public accommodations.

A recent Associated Press story highlights a Florida pastor's concern that a refusal to perform a same-sex marriage might constitute a civil rights violation. His concern is unfounded. The First Amendment protects the right of clergy to administer marriage rites consistent with their religious scruples.

A mere two days after the DOMA decision, Breitbart's Ben Shapiro jumped into the fray. Shapiro claimed, "On the state level, a movement is already under way to revoke non-profit status for religious organizations that do not abide by the same-sex marriage." Like so many other critics, Shapiro ignored the facts. In reality, Connecticut, the District of Columbia, Maryland, Minnesota, New Hampshire, New York, Rhode Island and Washington all explicitly provided safeguards against government imposed penalties for a religious organization's lawful refusal to facilitate a marriage inconsistent with their religious tenets. No one can seriously argue that there is an active "movement" looking to strip religious organizations of their non-profit status for refusing to perform or host same-sex marriages.

Not to be left out, the Heritage Foundation's Ryan T. Anderson attacked a recent New Mexico Supreme Court decision that rejected a photographer's challenge to New Mexico's law banning sexual orientation discrimination. A same-sex couple initiated a lawsuit under the nondiscrimination law in 2006 after the photographer refused to provide services for their commitment ceremony. Considering in 2006 same-sex marriage was not recognized in New Mexico, Anderson's headline "In NM, Same-Sex Marriage Trumps Religious Liberty" is misleading. Same-sex marriage didn't land the photographer in hot water -- her refusal to comply with the state's nondiscrimination law did.

Contrary to the dire predictions offered by marriage equality opponents, same-sex couples' freedom to marry and the free exercise of religion are not two pieces in a legal zero-sum game. Recent marriage equality legislation has provided meaningful protections for religious objectors to same-sex marriage.

Every state that has enacted same-sex marriage reiterates First Amendment protections by expressly exempting clergy from any requirement to solemnize or celebrate a marriage that violates their faith. The vast majority of these states exempt religious non-profits from any requirement to provide services or accommodations for the solemnization or celebration of a marriage. These groups receive immunity from lawsuits. Some jurisdictions provide even more protections than these. At the end of the day, every jurisdiction that enacted same-sex marriage provided more religious liberty protections for same-sex marriage objectors than constitutionally required.

Like pro-equality legislators, marriage equality advocates have embraced religious liberty accommodations. Take New York as one example. After the New York Marriage Equality Act passed with an amendment to include broader religious liberty protections, the executive director of the New York ACLU said that the added language was "in keeping with our country's principles of religious freedom." Echoing the ACLU, New Yorkers United for Marriage said, "The amended Marriage Equality legislation protects religious liberties without creating any special exceptions that would penalize same-sex couples or treat them unequally. The legislation strikes an appropriate balance that allows all loving, committed couples to marry while preserving religious freedom."

Same-sex marriage legislation can universally advance the cause of human liberty. Time and again, legislators have forged together compromises that move the majority's will forward to fully recognize same-sex couples without eroding minority objectors' rights. Rather than running roughshod over same-sex marriage opponents, pro-marriage equality legislators and advocates have embraced principled protections that promote the cause of equality and religious liberty.

Religious liberty and equality are fundamental constitutional values that are both worthy of respect and protection from the law. The facts on the ground evidence that the peaceful coexistence of religious liberty and sexual minorities' equality is not an elusive pipe dream. Advocates of the freedom to marry and an increasing number of state legislators have rejected the false choice between religious liberty and marriage equality. It's time for the forces fighting same-sex marriage to do the same.