While the debate over marriage equality is largely philosophical, rooted in deeply held personal beliefs, there is a substantive policy discussion that is often overlooked and worth exploring: religious liberty protections in marriage equality legislation.
As Illinois and Rhode Island progress toward enacting marriage equality, opponents are raising the specter of religious liberty's endangerment as a reason to thwart marriage rights for same-sex couples. Unsurprisingly, this resistance is strong.
Bishop Thomas Tobin of the Catholic Diocese of Providence, R.I., argues that a "real problem to consider is that the establishment of same-sex marriage would pose yet another threat to religious freedom." The Springfield, Ill., Diocese's Bishop Paprocki echoed this sentiment, claiming that marriage equality in Illinois would be "a lethal attack upon religious liberty." Secular organizations, including the Heritage Foundation, are chiming in, too, touting similar foreboding descriptions of the "consequences" that marriage equality poses to religious liberty in our constitutional order.
First and foremost, the concept of "religious liberty" warrants contemplation. Religious liberty is not a one-dimensional monolith. While many religious denominations oppose same-sex marriages, including the Catholic Church and the Southern Baptist Convention, many do not. The Episcopal Church, Quaker meetings, Conservative Jews and the United Church of Christ, for example, all, in some capacity, support marriage equality. Yet they cannot officiate over legally recognized same-sex marriages.
Certainly, religious liberty is important in the fabric of American life and a constitutional right deserving of respect and protection. Religious organizations are often the bedrock of many American communities and provide admirable charitable social services for which we all should be thankful. However, any narrow construction of religious liberty not only ignores the diversity of America's many religious traditions but demonstrates a fundamental misunderstanding of the concept itself. Indeed, the vision of religious liberty that Catholic clergy in Illinois and Rhode Island articulate turns the core concept of religious freedom on its head.
Secondly, already enacted same-sex marriage legislation demonstrates that religious liberty and civil equality for loving, committed same-sex couples are not mutually exclusive goods.
Every state that has enacted marriage equality provided greater religious liberty protections in those bills than required under the United States Constitution. While each state crafted their protections differently, many share similar features. Among these shared provisions are exemptions for religious institutions and organizations from requirements to celebrate or solemnize marriages inconsistent with their faith. States have also enacted language that prohibits the government from denying government contracts to or revoking tax-exempt status from religious organizations because of an objection to same-sex marriages.
Importantly, no marriage equality bill to date would have likely passed if these types of religious liberty provisions were not included. Religious liberty protections and civil marriage equality consistently share a common fate.
Recent history suggests that recognizing the freedom to marry enhances religious freedom. This is a testament to marriage equality advocates who seek to craft legislation to accommodate the views of religious objectors rather than use the power of civil law to browbeat non-commercial dissenting institutions and organizations into conformity.
Like every state before, Rhode Island and Illinois have a large menu of religious liberty provisions to choose from to craft their marriage equality legislation. While a healthy debate can be had over what particular language these states should employ in their respective bills, it is crucial to dispel one of the unfounded and empirically disprovable allegations made against marriage equality. Evidence, reason and history all refute claims that civil marriage equality necessarily impinges on religious liberty. With compromise, contemplation and carefully crafted legislation, Illinois and Rhode Island can and must join a growing number of states to realize our constitutional promises of the freedom to marry and the free exercise of religion.