The battle over same-sex marriage has been about more than whether to allow gays and lesbians to wed. In every state where same-sex marriage is legal – including Illinois, which today became the 16th state to allow gays and lesbians to marry – politicians and others have also debated how to best protect religious freedom.
Indeed, each of the 12 states that have passed laws legalizing same-sex marriage also protects religious groups and clergy who do not want to solemnize or participate in same-sex weddings. And in the four states that have made gay marriage legal solely through court rulings rather than legislation, judges in all but one have prohibited the state from compelling religious groups to participate in or recognize such weddings.
But even without any of these state-level safeguards, legal scholars say clergy and religious groups are already protected by the U.S. Constitution, which provides religious organizations a significant degree of freedom in deciding how, and for whom, to provide their religious services.
Some states that have passed legislation have gone even further. For example, gay marriage laws in Maryland and Connecticut include language allowing religiously affiliated groups that provide adoption, foster care and similar social services to refuse to serve same-sex couples, as long as they do not receive any state funds for the program in question. Furthermore, the gay marriage statutes in these two states, as well as in New Hampshire, Rhode Island and Vermont, allow religiously affiliated fraternal societies, such as the Knights of Columbus, to refuse to provide insurance or other services to members who are married to a same-sex partner.
Other states – California, Iowa, Massachusetts and New Jersey – have no statutory religious exemptions, largely because gay marriage was legalized as a result of court decisions. But even in some of these decisions, judges have made clear that religious groups should not be coerced into participating in same-sex weddings. For instance, in its 2009 ruling legalizing gay marriage (Varnum v. Brien), Iowa’s Supreme Court stated that religious groups retain the right to continue to define marriage to exclude same-sex couples, and thus are not required to perform or recognize such marriages.
So far, none of the states grant exemptions to businesses who, for religious reasons, might not want to provide services (such as catering or wedding photography) to gay and lesbian couples. This has already led to a number of anti-discrimination lawsuits against businesses that have refused to serve same-sex couples. One of these cases – involving a New Mexico photographer who, for religious reasons, refused to photograph a same-sex commitment ceremony – was recently appealed to the U.S. Supreme Court.
