Gay Marriage and Religious Liberty: Emerging Conflicts

Here are a few more interesting findings from the Faith in Public Life poll on Young Adults and the Election:

Younger white evangelicals strongly oppose abortion rights but are less conservative and more supportive of same-sex marriage than older evangelicals. Young white evangelicals are strongly opposed to abortion rights, with two-thirds saying abortion should be illegal in all or most cases. Yet, less than a majority (49%) of younger evangelicals identify as conservative, compared to nearly two-thirds (65%) of older evangelicals. Among young evangelicals, a majority favor either same-sex marriage (24%) or civil unions (28%), compared to a majority (61%) of older evangelicals who favor no legal recognition of gay couples’ relationships.

Generation gap on same-sex marriage is large and increasing. Nearly half (46%) of young adults say gay couples should be allowed to marry, compared to only 29% of Americans overall. Over the last two years, support for same-sex marriage among young adults has jumped 9 points (from 37% to 46%), and the generation gap has nearly doubled.

In my opinion, this is a positive statistic. When this subject comes up, I make no secret that I am in favor of extending legal recognition to those in same-sex relationships. It’s nice to see that among evangelicals, I am not alone and actually with the majority! I’m inclined to agree with Baptist ethicist David Gushee who recently wrote: “If we are right in drawing a link between making good laws and loving our neighbors, what then does neighbor love require in relation to the homosexual neighbors who seek marriage or a similar status?”

For me and a majority of young evangelicals, the answer is to support policies that help end gay bashing, respect gay civil rights and show genuine Christian charity toward homosexuals.

Addressing religious liberty concerns strongly increases support for same-sex marriage. When respondents were provided with an assurance that “no church or congregation would be required to perform marriages for gay couples,” support for same-sex marriage increased by 14 points in the general population and among younger adults.

Let me throw this out there first: I'm currently working on several papers - one of which is explores the very real emerging conflicts between same-sex marriage and religious liberty. The problem with the finding above is the implication that all or even most religious liberty concerns can actually be addressed with the assurance that "no church or congregation would be required to perform marriages for gay couples."

First, it is absolutely ludicrous to assert that the legalization of same-sex marriage will result in pastors being forced to perform such ceremonies. Ain’t gonna happen.

Nonetheless, there are a host of church-state conflicts that are likely to emerge as a result of more states following the lead of Massachusetts and California. Conflicts have already emerged between gay rights and religious liberty which affect housing, employment, places of public accommodation, medical and pharmacy services, commercial licensing, government funding, access to government property, freedom of speech, and religion clubs in public schools and universities. Some scholars fear that tax exemptions will be politicized and efforts will be made to revoke the tax exemptions of churches that aren’t gay-friendly. However, other scholars sense that as long as “historically important churches refuse to recognize gay marriages,” it remains highly unlikely that any executive-level government official will attempt to travel down that path. As legal scholars from the left, right and center recently demonstrated, the conflict between same-sex marriage and religious liberty is truly unavoidable.

Solutions are never easy. But, I believe, such conflicts can largely be avoided or dealt with through religious exemptions. As gay-rights laws are enacted, religious exemptions must be granted. Failure to grant religious exemptions will greatly hurt our First Freedom and ultimately elevate the principle of nondiscrimination over religious freedom.

There is another solution to this same-sex marriage – religious liberty conflict that I prefer and I am currently exploring in my paper. I call it the “Tony Campolo Solution.” Tony has long argued that “government should get out of the marrying business completely.” Centrist legal scholars like Douglas Laycock and Oliver Thomas have recently advocated “separating church and state in marriage” in order to reduce conflict over same-sex marriage. Both men would like to separate legal from religious marriage in law and in public understanding. Marriage is both a religious institution and a religious relationship AND a legal institution and a legal relationship. Laycock points out that “the legal relationship defines property rights, mutual duties of support, inheritance rights, tax liabilities, evidentiary privileges, rights to sue for personal injury or file for bankruptcy, claims to pensions, social security, and insurance benefits” and much more. So here’s Laycock’s solution which I’d call a more developed version of what Tony Campolo has spent years advocating for:

We should leave the word “marriage” to its religious meaning, and use the new phrase “civil union” to describe the relationship formerly known as civil or legal marriage. “Civil unions” should not be a second-class status for same-sex couples; civil union should be the legal relationship created by the state for straight couples – and for gays and lesbians in states that choose to legally recognize committed same-sex relationships. “Marriage” should be reserved for private and religious relationships, and the state should have nothing to do with it….In a religiously pluralistic society, we must have an account of legal marriage that works for believers and nonbelievers alike.

Laycock continues:

What would it mean to fully separate religious marriage from secular civil unions? Clergy could perform marriages within each faith tradition, but they could not perform civil unions. Civil unions would be created in a secular ceremony led by a judge, a notary public, or a clerk at city hall. Civil unions could be ended by civil courts that would sort out property rights, economic obligations and child custody. Marriages could be ended only within the religious tradition that performed the marriage. Each faith could maintain its own rules and marriage tribunals for its adherents. Or if a church chose, it could defer to the state’s decisions about any civil union between the same partners. But then it would have only itself to blame if it didn’t like the state’s decisions.

You can read Douglas Laycock’s full argument in the newly released book, Same-Sex Marriage and Religious Liberty: Emerging Conflicts.

Also check out Oliver “Buzz” Thomas’s recent USA Today op-ed titled “Gay Marriage: A Way Out.”