Article in Pacific Union Recorder. For Article, see: http://www.pacificunionrecorder.com/108/7/35882.html

Same Sex Marriage Challenges Religious Liberty
Alan J. Reinach, Esq.
In theory, allowing homosexual couples to marry should not undermine anyone's religious freedom. In reality, the California Supreme Court decision upholding gay marriage poses a serious threat to religious freedom. For the first time, the Court held that homosexuals shall enjoy the same legal status as race — protection as a fundamental right. Yet the Court has refused to recognize that religious liberty is a fundamental right and has ruled against religious freedom interests. The result is a legal imbalance where gay rights receive maximum protection, while religious liberty is granted less protection.

The issue is not about hostility to homosexuals. We affirm the gospel teaching that Christ died for all, and that His love is inclusive. Our analysis of the challenges posed by gay marriage to religious freedom does not justify any hostility, discrimination, intolerance or breach of the gospel principles of love to all of God's children. It also deserves repeating that the Bible affirms the value of human sexuality expressed in marriage between a man and a woman. So where's the problem?

Massachusetts, as the first state to approve gay marriage, gives us a view of where this may lead. The city of Boston required adoption agencies to serve homosexuals, and refused to accommodate the religious objections of Catholic Charities. Although Catholic Charities accounted for most of the adoptions in the city of Boston, it closed its adoption agencies rather than compromise its religious convictions. Thousands of children will languish in foster care, because the city itself did not choose to provide the adoption services to gay couples.

Now that homosexuality is equated with race, we can expect a wide variety of challenges to religious organizations that adhere to traditional biblical interpretations regarding marriage. Bob Jones University lost its tax exemption because its policy against interracial dating was inconsistent with public policy. Logically, similar challenges to the tax exempt status of churches and other religious organizations can be expected. Already, cases have been filed against wedding photographers who refuse to film gay wedding ceremonies. Will pastors who refuse to perform gay marriages be stripped of the right to perform weddings?

Beyond these future challenges, there are two critical cases now pending involving conflicts between religious freedom and gay rights. The Lutheran High School case involves a claim of discrimination under the Unruh Civil Rights Act against a religious school that expelled two lesbian students for sexual misconduct. The lower court ruled that Unruh does not apply to private schools. If this ruling is reversed on appeal, all private and religious schools will become vulnerable to a multitude of discrimination lawsuits.

In May, the California Supreme Court heard arguments that two doctors and a medical clinic discriminated against a lesbian couple by denying them artificial insemination services. The doctors argued that they properly referred the patients for services that they could not conscientiously provide. Lawyers for the patients insist that religion not be allowed as a defense.

We have long assumed that religious liberty enjoys a preferred status as a fundamental constitutional right, but this has not been true for nearly two decades. The Supreme Court discarded the First Amendment's protection for the free exercise of religion as a "luxury that a well-ordered society can no longer afford" in its 1990 peyote decision, Employment Division v. Smith. The California Supreme Court has not explicitly followed Smith. Instead, it has simply ruled against religious freedom in every case since that time. For example, in 1995, the Court held that Evelyn Smith's Presbyterian faith was not a good enough reason to refuse to rent one of her four duplex apartments to an unmarried [heterosexual] couple, despite the fact that in her city, Cal State Chico maintained hundreds of housing units exclusively for married couples.

The issue of gay marriage may be resolved in November when Californians have the opportunity to amend the state constitution to restrict marriage to a man and a woman. But this will not change the legal status of homosexuality as a fundamental right, given more protection than the right to practice one's faith. With such an uneven playing field, religious liberty faces an uphill struggle. The trend is that religious freedom will mean the freedom to hold one's faith in private, but not to practice it publicly.

Interesting . . . this is increasingly the case in many parts of the world. Even here in Australia, if I become too overt in what I am saying to others concerning my beliefs, I get tarred with a name of being radical . . . and being radical is not a nice label to have added to one's name.

"The Supreme Court discarded the First Amendment's protection for the free exercise of religion"

But don't my conservative friends keep telling me that that's *not* what the First Amendment is about, but about avoiding the establishment of a state religion?

It is both.

It is interesting to note that at the end, just before Christ returns, a little group is going to be blamed for a lot of horrible things and they will be hunted as enemies of humanity. One reason for that is they will insist on making their message heard and practicing their religion in a public way that will be considered radical and opposed to the general welfare. We're almost at the point where the Bible itself is considered by many to be radical and even evil. Will we change it (as some churches already have) because we want to be popular and fit in with the world? My understanding is that very few will decide to stand faithful with that little group against almost the whole world. Virtually the whole world will be dead wrong. A small number will be right and must be willing to pay for it with their lives.

I don't know what your conservative friends say.

The First Amendment has two clauses that concern religion. One is the establishment clause, the other is the free exercise clause.


One part is indeed about not establishing a federally established religion (many states had established religions at the time the amendment was passed, so it was not applied to the states; the last state establishment of religion ended around 1810, I think). The other part says that the federal government may not prohibit the free exercise of religion.

The California Supreme court is a very liberal court, which ignores original intent. It isn't surprising that this leftist court should ignore the free exercise clause. Liberal courts regularly disregard the wording of every constitution.

Yes, I agree there will be a time when this comes to pass. And what seems to be fuelling the fire are many Muslims who are intent on "following the Koran" to the letter of the law. These radical elements are forcing mainstream governments to act to preserve "the Western way of life". Soon, it will be the small group of "true believers" in the Word of God, who will be in the firing line as you suggest.

"The greatest want in the world is the want of men.
Men who will not be bought or sold
Men who in their inmost souls are true and honest.
Men who do not fear to call sin by its right name.
Men who's conscience is as true to duty as the needle to the pole.
Men who will stand for the right though the heavens fall."


regards