Washington, D.C. — As voters in Maryland, Washington, Minnesota, and Maine head to the ballot box this November to vote on marriage equality, the Center for American Progress today released “Twin Freedoms: The Facts About Freedom of Religion and the Freedom to Marry.” This report examines the kinds of religious exemption provisions that state lawmakers have included as part of their marriage equality bills, discusses their current and future impact on state residents, details how their inclusion has increasingly shaped the outcome of marriage equality debates across the country, and warns of new attempts to undermine equality by actually giving individuals the legal right to discriminate against LGBT people.
“Given increased acceptance of same-sex couples in the United States today, opponents of marriage equality can no longer attack LGBT people themselves,” said Jeff Krehely, CAP’s Vice President of the LGBT Research and Communications Project. “Instead, they have resorted to making disingenuous claims that affording the rights and responsibilities of marriage to same-sex couples somehow poses a threat to religious freedom. Despite claims of a supposed ‘war on religion,’ this report shows that the freedom to worship and the freedom to marry are not at odds with one another.”
Lawmakers in nine states and the District of Columbia have passed legislation affirmatively affording the rights and responsibilities of marriage to same-sex couples (marriage equality is currently legal in six states and D.C.—this analysis considers all legislation passed by lawmakers, even if it was repealed later or has yet to be signed into law). Essentially, lawmakers in these states considered and often adopted up to three broad types of religious exemptions:
- Provisions that reiterate existing protections clergy enjoy under current law to not solemnize a marriage that violates their religious beliefs
- Exemptions from existing public accommodations laws allowing religious organizations to deny marriage-related accommodations (e.g., banquet halls for rehearsal dinners) to same-sex couples
- Exemptions that would allow private individuals (such as shopkeepers, business owners, and city clerks) to discriminate against same-sex couples
Every single state that has passed a marriage equality bill has included the first two types of religious exemptions. Luckily, no state has gone as far as to give individuals such as restaurant owners or city registrars a legal license to discriminate against same-sex couples.
Religious exemptions have been useful in securing marital recognition for same-sex couples in numerous states. It is important, however, to recognize that these exemptions can often have a negative impact on same-sex couples seeking a range of goods, services, and accommodations from religiously affiliated organizations, with certain exemptions having a more pronounced effect than others. For the most part, the religious exemptions that have been adopted by states thus far have not come at a high cost compared to the benefits of recognizing marriages between same-sex couples. At the same time, many of these religious exemptions have not been in place for very long, especially some of the broader exemptions. Therefore their ultimate impact is still not completely clear.
Going forward, lawmakers should carefully consider the type of exemption language they include in marriage equality legislation, if any at all. Without careful consideration, religious exemption language might actually cause more harm than the good done by relationship recognition laws. Further, these relatively new laws remain untested in the courts, where judges may find constitutional problems with exempting religious institutions and leaders from nondiscrimination laws. Freedom of religion and the freedom to marry are wholly compatible with one another—thanks in large part to our Constitution’s ability to help lawmakers sort out complex debates like this one. Lawmakers should ensure all couples have the same rights and responsibilities of marriage, just as they should promote our freedom to worship as we choose. But they should not favor the freedom to worship at the expense of equality.