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Next gay marriage fight: religious exemptions

October 14, 2014

Alarmed by the broad expansion of same-sex marriage set in motion by the U.S. Supreme Court, religious conservatives are moving their fight to state legislatures — seeking exemptions that would allow some groups, companies and people with religious objections to refuse benefits or service for gay spouses.

But winning sweeping carve-outs for faith-affiliated adoption agencies or individual wedding vendors will be an uphill battle. Public attitudes against exceptions have hardened, and efforts by faith groups in states where courts, not lawmakers, recognized same-sex unions have had little success.

“When the judiciary does it they don’t do the kind of balancing that legislatures tend to do,” said Tim Schultz, president of the 1st Amendment Partnership, which has organized legislative caucuses focused on religious liberty in 20 states.

Every state legislative debate over gay marriage has addressed the question of whether religious objectors could be exempt in any way from recognizing same-sex unions. But in states where same-sex marriage became law through the courts, only one, Connecticut, followed up by enacting significant new exemptions. Massachusetts, Iowa and New Jersey have provided no opt-outs for gay marriage opponents.

Until recently, gay rights groups accepted some exceptions to pick up badly needed votes from conservative lawmakers. But that political pressure has dropped as acceptance of same-sex unions has grown. Gay advocates say broad carve-outs perpetuate the very discrimination they had been working to end.

That argument gained currency after the Hobby Lobby ruling last June. The high court decided the arts-and-crafts chain and other closely held private businesses with religious objections could opt out of providing employees the free contraceptive coverage required by the Affordable Care Act. While conservatives rejoiced, liberal groups were outraged, and many vowed to aggressively oppose exceptions for faith groups. Soon after, prominent gay rights and civil rights groups withdrew their support from the federal Employment Non-Discrimination Act, or ENDA, because of the wide reach of its exemption.

“I think there’s a broad consensus that the rules should apply to everyone, which is why we withdrew our support from ENDA,” said Jennifer Pizer, senior counsel at the national gay rights group Lambda Legal. “If you have different standards, then it communicates a message that some kinds of discrimination are not as serious as others.”

The religious exemption fight isn’t about what happens inside the sanctuary. First Amendment protections for worship and clergy are clear. The concern instead is for religious organizations with some business in the public arena. That category includes faith-affiliated associations that rent their properties to the public for wedding receptions; religious charities that provide adoption and other social services, often with government funding; and individual religious objectors such as justices of the peace, government clerks or business owners.

The exemptions approved so far have generally been much narrower than faith leaders sought, although opponents did win some meaningful concessions. About a half-dozen states allowed religious associations, such as the Knights of Columbus, or some faith-based nonprofits to deny specific benefits for gay couples — such as insurance for spouses — or refuse to serve them. A few states allowed privately funded adoption agencies to refuse to place children with gay couples. Religiously affiliated marriage support programs, such as Christian couples’ retreats, were exempted in several states. But many of the states only reiterated First Amendment protections for worship.

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