Gay Marriage: The Coming Clash of Civil and Religious Liberties

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Hans Pennink / AP

Supporters of same sex marriage celebrate after Senate members voted and approved same-sex marriage at the Capitol in Albany, N.Y., Friday, June 24, 2011.

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Mohler worries that the New York law's religious liberty protections will almost certainly be challenged by gay couples who see a tuxedo shop's owners refusal to do business with them as deeply insulting. "These issues are inevitable, given the complicated and inevitable interface of religious conviction and the institution of marriage. It is hard to see how the accommodation put together in the New York legislation can stand, given the direction of the courts."

New York Law School professor Arthur Leonard, who has edited the widely cited "Lesbian/Gay Law Notes" for 31 years, is more hopeful than Mohler. But he, too, agrees that the provisions in the New York law run the risk of setting up a collision course in the courts. "You need to understand the history on this. There have been disputes, mainly about Catholic adoption agencies refusing to provide adoption services for same-sex couples, and a few other disputes around the country, that provide the fuel for these demands for religious protections," he told TIME.

"The language is ambiguous enough to mean that it may take a court to determine when the religious liberty interests prevail against the right of gay couples to arrange their weddings," says Leonard. But he said the bill contains a "poison pill provision" that means if the religious liberties clauses are struck, the bill itself is invalidated. "So the bill potentially gives a wide range of religiously-affiliated entities license to discriminate against married same-sex couples. I am hopeful that administrators at Catholic hospitals, for example, will be wise enough and compassionate enough avoid the temptation to discriminate against same-sex spouses of patients, which would preclude the need to litigate the matter."

Donald P. Kommers, the Joseph and Elizabeth Robbie Professor of Political Science emeritus at the University of Notre Dame, says protections like the ones found in the New York law are essential for religious institutions that simply will not support gay marriage. "They are indeed proper if religious liberty in America is to be respected or observed," he says. "A religious group fundamentally opposed to gay marriage as a moral or biblical matter should not be compelled to support or participate in any activity or institution, private or public, that would offend its religious beliefs."

Kommers says he still favors finding a way out of the inevitable clashes of conscience that he says legalizing gay marriage will bring about. He would reserve marriage for opposite-sex couples but would create civil partnerships to allow all sorts of couples, including gay couples but also unmarried siblings or aging friends, to arrange their lives as they see fit and for those unions to be given the same legal benefits as married couples.

But for now, momentum is in the other direction. "The New York vote reframes legislative debates on lesbian and gay rights across the country, including in states that have yet to provide even the most minimal sort of anti-discrimination protections for lesbians and gay men and their families," Spindelman told TIME. "Legislative reluctance to enact basic civil rights protections that others can take for granted — or do not need — looks increasingly ideological and out of date, a throwback to another era. The New York vote is a bright arrow pointed toward the future — a future that many welcome, but that others, of course, continue to perceive with something more akin to dread."

Count Mohler in the latter group. For him, the country has been down this divisive path before — and it's nothing to look forward to. "It now appears that the nation is moving in the direction of a divided map on the issue of marriage," he told TIME. "I predict that this map might look much like the map of the U.S. on legalized abortion prior to Roe v. Wade." If he is right, then we may be fighting over gay marriage 40 years from now, no matter how the Supreme Court rules should it ever hear the California case.

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