10/13/2011 10:57 am ET | Updated Feb 02, 2016

Vermont Dilemma: What Happens When Same-Sex Marriage and the First Amendment Collide?

My annual Vermont summer vacation has always included picture-perfect scenery, but not the constitutionaI dilemma I encountered last month at the Wildflower Inn, in Lyndonville, Vt.

Over the past five or so years, my family has stayed at the inn, which is owned and run by Jim and Mary O'Reilly around 570 wooded acres. This is the part of Vermont that is known as the "Northeast Kingdom," and it is as idyllic a spot as you can find in New England. People vacation at the inn for extended stays, and over the years it has been the site of many marriage ceremonies and receptions.

The O'Reillys are an Irish Catholic family, but other than that casual observation, I have never been subject to any political or religious message attached to their business. I still haven't, yet suddenly this summer the inn became the subject of a federal lawsuit and a vicious Internet posting campaign for its decision to deny a lesbian couple its grounds for their marriage rite.

In their defense, the O'Reillys made it clear that they have never denied same-sex couples accommodations or dining, nor have they discriminated on the basis of sexual orientation in their employment practices. But, due to their Catholic faith, they do not feel comfortable hosting "expressive events" that they consider tantamount to "compelled speech."

The words are chosen carefully, as they point directly to the First Amendment, and in fact the dispute here is most assuredly a constitutional one. On the one hand, we have the lesbian couple's argument that they are being denied a service because of their sexual orientation. They maintain this to be a violation of Vermont's Fair Housing and Public Accommodations Act.

The O'Reillys, in their response to the complaint, acknowledge that they are in breach of the statute, even though it was written long before the state recognized same-sex civil unions (2000) and same-sex marriage (2007). Still, they argue that the law should not apply when it would force a proprietor to host something that is contrary to his or her religious principles and that applying it here is in violation of their First Amendment rights.

It is tempting to compare this to a resort in Georgia in, say, 1960, denying its grounds for a marriage ceremony because the couple marrying is African-American, unless, of course, you are a devout Catholic or belong to some other religious community that considers the marriage of a lesbian couple to be an affront to God. Then you might say that this is not discrimination but an expression of faith. We would not expect an obstetrician who believes that abortion is sinful to nonetheless perform abortions when asked, but since the Wildflower Inn regularly hosts heterosexual marriages, the more accurate analogy here would be an obstetrician who was willing to perform abortions for some but not for others.

It is interesting in that it all leads back to this question: is the marriage of a gay or lesbian couple somehow a different rite from the marriage of a heterosexual couple? Of course, that is what is at the heart of the same-sex union debate. In the case of the Wildlfower Inn, situated in mostly liberal Vermont, the state legislature has already made it clear that, despite the religious disagreement on this question, this state's law now regards same-sex unions as equivalent to heterosexual unions.

That is good news for gay and lesbian couples looking to enjoy the ancient tradition of marriage, along with its legal and social benefits. But from the O'Reillys' point of view, if you are a Catholic businessman in Vermont, must you now also adhere to the state's definition of marriage? Or, to look at it from the flip side, if you are a Vermont businessman who is Catholic, is it a breach of your faith and an interruption to your "free exercise" of religion that you are forced to facilitate and profit from a rite that your faith considers to be wrong?

Naturally, the lawsuit was Topic A among guests chatting by the pool or over dinner this summer, and each now faces a moral dilemma of his or her own. The inn's clientele are mostly urban Northeasterners from the Boston or New York area and, by the most cursory observation, more likely to attach themselves to the liberal Vermont spirit than to any latent conservative one. (Despite its liberal reputation, Vermont, for most of its history, was rigidly Republican.)

So for these people (including me), the question now comes: are the guests implicitly endorsing discrimination by patronizing the inn? Or is this decision by the O'Reillys theirs to make, a private and personal choice that should not fairly be represented either implicitly or explicitly in any other transaction with their business?

As the guests mull those issues, the federal district court will be considering answers to the constitutional ones here, and when its decision is handed down, it may well set the standard for other states that have recognized same-sex unions, as well.

This post first appeared on the National Constitution Center's Constitution Daily blog.