Posted on 02/23/2004 2:54:43 PM PST by truthandlife
Prominent conservatives are warning that the debate over civil marriage could soon move into the religious arena and change the way churches treat marriage.
Same-sex couples are already looking ahead to May when they can obtain civil marriage licenses in Massachusetts. And just in the last two weeks, officials in San Francisco have handed out marriage licenses to more than 3,000 homosexual couples - allegedly in violation of the California Constitution and a voter-approved referendum.
Religious marriage poses a different set of circumstances since churches and similar institutions are protected by the Constitution. But conservatives of various religious denominations told CNSNews.com that threats remain, including the possibility that churches could be stripped of their tax-exempt status.
Richard D. Land, president and chief executive of the Southern Baptist Convention's Ethics & Religious Liberty Commission, said changes are probably in store for some denominations, whether they are adopted voluntarily or imposed by the government.
"If political correctness wins the struggle for hearts and minds," Land said, "then you may see tremendous pressure to take away the tax-exempt status of churches and denominations and organizations that refuse to fully affirm and accept the homosexual lifestyle."
Land pointed to the growing split within the Episcopalian, Methodist and Presbyterian churches over homosexual clergy and same-sex relationships. Other faiths, including the Roman Catholics and Southern Baptists, aren't likely to change their ways anytime soon, he said.
Still, there are growing fears in Catholic circles, said Raymond L. Flynn, a former U.S. ambassador to the Vatican who also served as a Democratic mayor of Boston. He said there is a "very distinct possibility" that homosexuals will set their sights on redefining religious marriage.
"The issue of legalizing same-sex marriages in Massachusetts and California raises the question: Does this mean there will be cases brought against the Catholic Church for discrimination? I think it is the next step," said Flynn, who heads Your Catholic Voice, an activist group. "I don't think people will stop until the whole sacred institution of marriage crumbles."
Any threat to religious marriage between a man and a woman remains hypothetical today. But even homosexuals have acknowledged that the developments in Massachusetts and San Francisco arose quicker than they anticipated.
Building a movement
The Metropolitan Community Churches - boasting 40,000 members and 300 churches worldwide - are best known for embracing same-sex relationships. Their leader, the Rev. Troy D. Perry, has said, "Anything less than full marriage equality is settling for second-class status."
Other groups like Soulforce, which campaigns against "spiritual violence perpetuated by religious policies," are working inside denominations to promote change. Its spokeswoman, Laura Montgomery Rutt, said parishioners are increasingly talking about same-sex relationships.
"I believe churches are allowed to discriminate and be as bigoted as they want to be," she said. "However, our mission is to make homophobia as unacceptable in the churches today as racism is. And when you look at the history of the churches around segregation and slavery, you'll see they were wrong then too."
But just because churches might discriminate doesn't mean the government should get involved, Montgomery Rutt said. She noted that the Catholic Church often refuses to marry divorcees, while conservative Jewish denominations frown upon mixed-religion marriages.
"Religion has thrived in America because we have freedom of religion," she said. "The government should never be allowed to interfere in the church unless they have some compelling state interest."
The Lambda Legal Defense and Education Fund has led the way in litigating cases for homosexuals, but Michael Adams, director of education and public affairs, said the organization has no interest in bringing a lawsuit against a religious institution.
"Every church and religious denomination gets to decide for itself what rules it wishes to pursue, so I think it's fair to say there's zero chance of any legal action like that," Adams said. "And if there was legal action, it would clearly be unsuccessful."
Adams said he wasn't aware of any homosexual advocacy group contemplating such a challenge. Changes would have to come internally, he said, from a church's parishioners.
Losing tax exemptions
Although no legal challenges appear imminent, conservatives noted how rapidly things have changed already. Allan C. Carlson, the Family Research Council's distinguished fellow for family policy studies, said he fears churches could face threats to their tax-exempt status.
"I think there's vulnerability there," said Carlson, who is also president of the pro-family Howard Center in Illinois. "If same-sex marriage was deemed a fundamental human right, would churches still be allowed to ban such things and also claim a tax exemption? I don't know."
The best-known case of the Internal Revenue Service revoking a non-profit's tax exemption came in 1970 when Bob Jones University lost that status because it wouldn't admit black students. The Supreme Court in 1983 refused to restore the university's tax-exempt status, citing the fact that Bob Jones maintained a ban on interracial dating. The university has since changed its policies and is now exempt.
Similar calls have been directed at the Boy Scouts for its exclusion of homosexuals. But nothing has come to fruition since the Supreme Court backed the Boy Scouts' freedom of association rights in 2000. Instead, several troops have been excluded from charitable programs or subjected to hostility.
Robert H. Knight, director of the Culture and Family Institute at Concerned Women for America, predicted that homosexuals would try to chip away at the tax-exempt status of churches that reject same-sex relationships.
"The ultimate goal is to abolish marriage and to create a social order in which only the whims of individuals are fully protected," Knight said. "In order to do this, the church will have to be silenced."
Supporters of the Federal Marriage Amendment said its addition to the U.S. Constitution was the best way to counter any threats that might arise. Otherwise, said Matt Daniels, president of the Alliance for Marriage, churches and other non-profits could find themselves running afoul of a judge's order.
"The institution of marriage," Daniels said, "is so foundational to many areas of policy and law that it is inevitable that the destruction of the legal status of marriage by the courts will inevitably have legal consequences for all sorts of organizations that continue to adhere to the concept of marriage as a union of a male and a female."
Not so fast
As the former dean of Catholic University Law School and now a constitutional law professor at Pepperdine University, Douglas W. Kmiec said institutions have faced challenges in the past by adhering to their religious doctrine on matters like sexual orientation.
But Kmiec said he hoped it would be a long time before a court infringed on the religious freedom of churches. Still, he pointed to the troubles facing groups like the Boy Scouts.
"Multiple entities have withdrawn preferred campgrounds, they have refused to allow Scouts to use public facilities and they have refused to allow the Scouts to participate in charitable drives," he said. "All of those things are deeply unconstitutional and wrongful in the sense that they disregard the Scouts' freedom of association that the Supreme Court vindicated.
"They would be especially wrongful if they were duplicated with regard to a church that refused to conduct a same-sex marriage," he added. "Because not only then would the freedom of association be at issue, but the free exercise of religion would be at issue."
While supporters of traditional marriage fear erosion at the religious level, Eugene Volokh, a University of California at Los Angeles law professor, said those fears might be exaggerated.
He said churches could raise a "significant constitutional defense" to keeping their tax-exempt status. He noted, for instance, the Catholic Church has faced criticism for years because it doesn't ordain women as priests.
"Churches, quite clearly, have the right to marry or not marry whoever they please," Volokh said. "Maybe somebody could sue them for discrimination in marriage, but the churches will certainly win."
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