05/27/2009 05:12 am ET | Updated May 25, 2011

Civil Unions and Religious Liberty

The Illinois legislature will soon act on the Religious Freedom Protection and Civil Union Act, which would legally recognize civil unions in Illinois. The legislation provides that "persons entering into a civil union" will have "the same obligations, responsibilities, protections and benefits" as married persons. Civil unions would be available to adults "of either the same or opposite sex." Traditional "marriage," however, would remain available only to persons of the opposite sex.

Such legislation is currently supported by the vast majority of Americans. Recent polls show that Americans favor the legal recognition of civil unions by an extraordinary ratio of 60 percent to 34 percent.

There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.

The legal recognition of civil unions represents an important step forward in the continuing moral progress of the United States. It is, of course, a compromise, but it is a reasonable compromise at this time in our history.

The most vocal opponents of this bill argue that their religious freedom would be impaired by the recognition of civil unions. It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere. So, the question is: How does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?

The most obvious tension arises out of the fact that some religious people believe same-sex relationships are inherently sinful and immoral. They therefore insist that the state should not legitimate such relationships. The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law. The framers of our Constitution certainly embraced this principle, and as the Supreme Court recognized almost 50 years ago, the state cannot constitutionally use its "power to aid religion." It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them.

There is, however, a more modest version of the religious liberty objection: that people with sincerely held religious beliefs should not be compelled by the state to act in violation of those beliefs. This is a reasonable position. And it is why the pending Religious Freedom Protection and Civil Union Act expressly provides that nothing in the legislation "shall interfere with or regulate the religious practice of any religious body" and that any religious body "is free to choose whether or not to solemnize or officiate a civil union."

This provision accords very broad protection to religious liberty and to the interests of religious institutions whose beliefs and practices are incompatible with the recognition of civil unions. Indeed, this protection goes far beyond what the Supreme Court has held is required by the 1st Amendment. This is a respectful and very substantial acknowledgment of legitimate religious liberty interests, without running roughshod over the fundamental interests in fairness, decency and common humanity that motivate the legislation.

As a compromise for our times, the proposed civil-union bill strikes a thoughtful balance between the compelling interests of those who seek to share the joys and responsibilities that come with permanent and stable personal relationships and those who are sincerely concerned about the preservation of religious liberty. It is a wonderful example of groups in a self-governing society finding common ground, where each side acknowledges and respects the interests of the other. It should be enacted quickly and enthusiastically, for it reflects the American spirit at its very best. As President Barack Obama has said, "this issue is about who we are as Americans. It's about whether this nation is going to live up to its founding promise of equality by treating all its citizens with dignity and respect."