Last June, Denmark’s parliament passed a law requiring churches to conduct gay marriage ceremonies. Priests can opt out, but if they do, the local bishop has to find a replacement to conduct the ceremony. When Maryland voters legalized gay marriage in November, a conservative friend sent me a link to the Denmark story to explain why he’d voted against his state’s ballot initiative. He says gay marriage doesn’t bother him, but he’s convinced that as it takes root, churches and other religious institutions will be forced to embrace it.
This objection makes me apoplectic. We are not Denmark! We have a deep-rooted, constitutional division between church and state and an equally deep-rooted constitutional protection of freedom of religion, which make us different from any other country. And the history of how our courts and government have safeguarded those religious rights weigh definitively on the side of allowing churches to refuse to perform weddings for gay couples for as long as they so choose. I’m not saying it’s a good thing for churches to do that. I’m saying that the law balances the civil rights of gay people against the civil rights of religious groups—and in that contest, the churches (and mosques and synagogues) win.
In theory, the government could direct the behavior of churches by mandating that they perform gay unions or punishing those who don’t by denying them benefits—in particular, tax-exempt status. After all, religious institutions rely on not paying taxes, so this is important to them. But the government has never used either power to tell religious groups who they have to marry. “After the Supreme Court struck down state bans on interracial marriage in Loving v. Virginia in 1967, there was never the suggestion that private religious groups that wouldn’t perform interracial marriages would be shut down,” Harvard Law School Dean Martha Minow points out. “Or lose their tax-exempt status.”
In a 2007 article in the Boston College Law Review, Minow asked this key question: “How can a pluralistic society commit to both equality and tolerance of religious differences?” The answer, she argued, lies in exactly how we create exemptions to civil rights laws for religious groups. She showed how this unfolded historically. After Loving, the Internal Revenue Service started denying tax exemptions to private schools in Mississippi that discriminated against blacks. At the time, Bob Jones University, in South Carolina, did not admit African Americans because it saw the Bible as barring interracial dating and marriage. In the 1970s, Bob Jones started letting in black applicants but said that students who dated or married across racial lines would be expelled. The IRS decided that the school would lose its tax exemption. Congress introduced 13 bills to overturn the IRS decision, Minow writes, but none passed. In 1982, the Supreme Court sided with the IRS against Bob Jones. The court said that the government’s interest in eradicating racial discrimination was fundamental and that trumped Bob Jones’ claim that the IRS was interfering with its exercise of freedom of religion.
And on this single point—religious institutions can’t discriminate on the basis of race and remain tax exempt—the courts have held fast, because on this issue the country has reached a consensus. Minow points out that Chief Justice John Roberts said he supported the court’s Bob Jones decision at his 2005 confirmation hearing. Neither party wants to defend blatant racial discrimination any longer. In fact, Bob Jones ended its ban on interracial dating a decade ago. (The university hasn’t reapplied for its tax exemption, but an affiliated academy and museum are tax exempt.)
But the same rule most decidedly does not apply to religious groups that discriminate against women or gay people. In 2002, a woman named Susan Rockwell challenged the tax exemption of the Catholic Church because it doesn’t allow women to become priests. She lost. That’s because of the “ministerial exception” to anti-discrimination laws. Churches, synagogues, and mosques get to pick their clergy, end of story. Actually, their exemption to sex-discrimination laws extends much further, to a Catholic school that fired a pregnant, unmarried teacher and even to a Christian school that turned down a teaching applicant because she had school-aged children. The churches affiliated with the Christian school decreed that mothers shouldn’t work outside the home. And that was enough to trump this woman’s employment rights—an exception you could drive a truck through, if you ask me. But the Supreme Court let it stand.
In cases like these brought by gay people, the first question is whether state law prohibits discrimination on the basis of sexual orientation, because federal law does not. So in Kentucky, which has no such law, a Baptist social-services agency was allowed to fire a therapist for being a lesbian. I’m happy to say I don’t think this would fly in the 21 states (plus the District of Columbia) that do protect the rights of gay people. But remember, we are still a long way from churches being forced to marry gay couples or hire gay ministers. We’re talking about teachers and social workers who work for religiously affiliated institutions—in states that have chosen to protect them from discrimination.
When states have laws that prohibit anti-gay discrimination in spaces open to the public, they generally exempt “actual places of worship, the organizations they operate, and certain private organizations,” according to this 2012 law review article. So it’s true that in 2007, New Jersey denied a tax exemption to a boardwalk pavilion in Ocean Grove owned by a Methodist group after two lesbian couples were rejected when they asked to hold civil union ceremonies there. But this was a beachfront property, not a church—and 99 percent of the group’s land, taken as a whole, retained its tax exemption.
That’s why the story of an anti-discrimination ordinance in the city of Hutchinson, Kansas, makes me sad. When the law was proposed last spring, religious groups railed that it would require churches to rent buildings to gay couples “for drag parties.” In fact, said Chad Graber, executive board member of the Hutchinson chapter of the Kansas Equality Coalition, this could only have occurred if a church made a building publicly available—if it opened up a banquet hall, for example, as a public space rather than only renting it to members. Because of the backlash, the city council reworked the proposal, leaving out public spaces entirely, and in June put into effect only limited protections against being fired or evicted for being gay. (The council also took transgender people off the LGBT list.)
But by then, a battle was raging. A group called Awaken Kansas campaigned to torpedo the measure in the November election. “They told people pastors would have to perform gay marriages,” Graber told me. “The churches were completely exempt, but they used it as a scare tactic.” In November, local voters rejected the ordinance.
It’s just wrong to spook voters about gay rights by arguing that gay people are coming for their churches. It’s not gonna happen. Not just as a tactical matter, but also as a legal one. If that ever changes, it will be because we’re as united about the pernicious nature of anti-gay discrimination as we are about racial discrimination. Or until no one wants to belong to a church that doesn’t perform same-sex weddings, any more than they’d want to be in a church that forbids interracial ceremonies. Maybe we should be there. But I don’t need to tell you we’re not.