America has a long history of protecting the legal rights and religious freedom of all people. This protection is now being stretched by two radically different views in the debate over same-sex marriage. Advocates of same-sex marriage often use the same legal opinions to promote their views that their opponents use in opposing them. Let me explain.
Some opponents of same-sex marriage clearly use the teaching of Scripture to oppose the legalization of such unions. Believing that same-sex marriage is immoral (as a confessing Christian I believe this way) these advocates then go on to argue that the state’s actions should always reflect the opinion of the majority. If the courts rule otherwise then they see the court decision as a denial of religious freedom. But a law that creates moral controversy, and even opposition to Christian doctrine, does not mean that there is a clear denial of free exercise as stated in the First Amendment.
On the opposite side proponents of same-sex marriage claim that the separation of church and state should keep the government out of the marriage debate altogether. Their argument is rather simple—marriage between one man and one woman is based on religious doctrine thus such marriage law is a violation of the Free Exercise Clause. But this argument is specious since we have clearly defined laws about theft and murder. Both of these laws conform to religious teaching and are the opinion of the majority but this does not make them a violation of church and state.
K. Hollyn Hollman, the general counsel of the Baptist Joint Committee, writes:
Instead of making such broad and misleading claims, advocates for religious liberty on all sides of the marriage debate would be better served by trying to specify the interests at issue, the conflicts between competing rights, and possible ways of minimizing harm. Where and how are gay rights and religious liberty rights likely to clash?
First, there are concerns about the autonomy and freedom of religious groups that oppose same-sex marriage. Hollman sees this concern as misguided. I wish I could agree but I am not fully persuaded she is right. Will zealous secular judges and officials seek to hinder freedom of speech by Christians who oppose same-sex marriage or who refuse to perform such marriages if they become legal? In Canada this has already happened. The United States has a stronger legal precedent against it, thus Hollman’s belief that it will not happen here. But I still wonder. The rhetoric of some has led to my nervousness in several instances.
Second, the more valid concern is that there will be a denial of liberty to schools and hospitals with religious convictions against same-sex marriage. Should religious exemptions based on sexual orientation be a part of the same-sex debate? I think so. Some same-sex advocates agree but most show no concern at all. What we need is a sound interpretation of both the Free Exercise Clause and the Establishment Clause. Without these we will cease to be vigilant in keeping church and state properly separate.
Our goal, in terms of the legal debate, ought to be to preserve religious freedom against all encroachment, whether from the advocates or the opponents of same-sex marriage.
I oppose same-sex marriage. My opposition is not primarily rooted in religious convictions, though I plainly oppose it on religious grounds inside the church. In the culture I believe that we need to make a case for why this “experiment” in marriage is harmful to families and children. There is a strong case for this point of view but we rarely hear it clearly stated by the opponents of same-sex marriage. We don't expect it from the other side since they do not want us to discuss this issue in a way that might question the outcomes of their campaign to change the law.
I recognize that if my state adopts same-sex marriage it will be become the law. It would be a law I do not agree with thus I would still want the freedom to oppose it. But it would be the law. I will never perform same-sex marriages regardless of the legal consequences. But I will never use the Free Exercise Clause to oppose such a law unless I clearly believe the law violates my freedom to live out my faith under the rule of law.
I do not think the average person who debates this issue understands how unique and important the Free Exercise Clause is to our way of life. Those who are not vigilant in protecting this legal stance could lose it. It is a treasure that Americans inherited from the bloody sacrifice of those who came before us. No previous culture dared to create such a nation. We dare not give it up to anyone, left or right, liberal or conservative, Christian or non-Christian.