The Religious Freedom Red Herring & DOMA

Abby Dees

Abby Dees

By: Abby Dees*/Special for TRT–

By the time you read this, you’ll probably know if the Supreme Court has decided to hear one of the three marriage equality cases knocking at its venerable doors. I’m willing to bet a hundred bucks that the Court will agree to hear one of those appeals, and in 2013 will decide this issue once and for all. If I’m right, then next year is going to be the loudest, most debated, most obnoxious – possibly the most important – year in our history till now with regard to LGBT rights.

The Court, like the lower courts before, will consider legal arguments on both sides. There will be careful examination of the history of equal protection law and much serious throwing around of such legal terms of art as “heightened scrutiny,” “rational basis review,” and “legislative history.” Meanwhile, average non-lawyer Americans will play right along at home, arguing each side just as intensely, only with a whole different set of facts and rules.

Right now, maybe the most bandied about argument against marriage equality is that it will violate people’s religious freedom. If you believe the anti-marriage-equality folks, you might think that only they stand between the LGBT community and total secular chaos. But if you followed the courtroom action in any of the marriage cases, you might have noticed that the religious freedom argument doesn’t get much play in front of a judge. That’s because the lawyer’s all know that marriage equality will never mean that priests and rabbis will be forced to perform a marriage ceremony against their beliefs.

Have you ever seen a divorcée get married in a Catholic church? How about a couple of Southern Baptists getting hitched in an Orthodox temple? Probably not. Our First Amendment guarantee of religious freedom means that the government can’t tell people what to do in their own, private religious ceremonies – unless it’s really dangerous, in which case, yeah, the fire marshal can shut down the part where the minister tries to swallow a flaming spear, or whatever. This is never, ever, going to change.

I once read a story posted by an anti-LGBT group about a priest who got fined for refusing to marry a lesbian couple, and so, scratching my head, I did a little source checking. Turns out they omitted one tiny part of the story: it happened in Sweden. It concerns me when I have to remind people that different countries have different laws, but why let facts get in the way?

This doesn’t mean that religious institutions are free to discriminate as much as they want, and then use the First Amendment like diplomatic license plates in a no-parking zone. There are plenty of examples of church-run businesses or secular social services being held to the same equal protection requirements as everyone else. The critical distinction is that these are not faith or worship activities. Opponents of marriage equality intentionally fudge this fact so as to convince well-intended religious folks that we want to destroy everything they, literally, hold sacred.

In practice, this could mean that if a church owns a park that’s open to the general public, it can’t discriminate against couples who want to use that park for a wedding on the basis of race, religion, or – if the park is in a place that recognizes LGBT rights – sexual orientation. But the minister will never have to perform that wedding, nor will we be allowed to shove our way into a house of worship for a big ol’ gay wedding.

I don’t buy the religious freedom argument at all, whether based in law or common respect. I’ve met some pretty radical queers in my life and none of them has ever said anything like, “In my dream wedding, we’re wearing matching Chanel suits and our priest will perform the ceremony under duress, in violation of his religious tenets.” I mean, is this romantic? We’ve got our own supportive places of worship anyway. And we, as much as anyone, understand the importance of letting people be free to make their own, most personal of choices without intrusion by the state, random strangers or anyone else’s religious beliefs.

*Abby is a civil rights attorney-turned-author who has been in the LGBT rights trenches for 25+ years. She can be reached

banner ad