By Ronald J. Rychlak
America's position on homosexual activity has radically changed over the past few decades. Fifty years ago, every state criminalized homosexual acts under "sodomy laws." As recently as 1986, the Supreme Court upheld the constitutionality of such laws. In 2003 there were still 13 states that criminalized homosexual acts (though the laws were rarely enforced). That year, however, the Supreme Court ruled these laws unconstitutional. Today, laws are used to protect rather than prohibit homosexual activities.
The supreme courts in California and Connecticut are about to decide whether same-sex couples have a right to marry in those states. Massachusetts already granted homosexuals that right. Vermont, Connecticut, New Jersey, and New Hampshire all have civil unions, which are similar to marriage, but activists in those states are already pointing to deficiencies and pushing for full recognition of gay marriage. Regardless of what it is called, legal sanctioning of homosexual relationships creates a host of unintended consequences and constitutes a serious threat to religious liberty.
Consider what happened in Massachusetts in 2004: Justices of the peace who refused to preside over same-sex unions due to moral or religious objections were summarily fired. Since same-sex unions were entitled to be treated the same as traditional marriages, this refusal was discrimination and a firing offense.
What about a priest or minister who similarly refuses to preside at such ceremonies? Obviously the state can't fire such people, but it is easy to foresee other sanctions -- such as loss of tax benefits -- being imposed on churches. After all, if gay marriage truly is no different from traditional marriage, by what justification can the government give preferential treatment to an entity that discriminates?
Just last year, two women filed a complaint in New Jersey because they were denied use of a pavilion for their civil union ceremony. The pavilion was owned by a Methodist ministry. It had been rented out for marriages, but the ministry refused to rent it for civil unions because it is a religious structure, and civil unions are not recognized in the United Methodist Church Book of Discipline. Due to the ministry's refusal to rent it for the lesbian ceremony, New Jersey revoked its tax-free status.
The Des Moines Human Rights Commission found the local Young Men's Christian Association in violation of public accommodation laws because it refused to extend "family membership" privileges to a lesbian couple that had entered a civil union in Vermont. Accordingly, the city forced the YMCA to recognize gay and lesbian unions as "families" for membership purposes, or lose over $100,000 in government support.
Perhaps the most notorious example of a state forcing its view on a church agency comes from Massachusetts, where Boston Catholic Charities ran an adoption agency that had been placing children with families for over 100 years. In 2006, Archbishop Sean P. O'Malley announced that the agency would abandon its founding mission rather than submit to a state law requiring it to place children with homosexual couples. (A Vatican document from 2003 described gay adoptions as ''gravely immoral.")
The legal analysis in these cases is really pretty simple: If homosexual marriages or civil unions are the equivalent of traditional marriages, you can't discriminate. If you do, at the very least you put your government benefits at risk. This is the same rationale that was used by the Supreme Court in 1983 to uphold stripping Bob Jones University of its tax-exempt status due to its racial policies.
A potentially greater threat is that government agencies will try to change church teachings. It is already happening in other nations. The Catholic Church, for instance, teaches that homosexual inclination is a "tendency toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder." Bishop Fred Henry of Calgary, Canada, was investigated by the Alberta Human Rights Commission for doing little more than writing about this teaching in a newspaper column. Åke Green, pastor of a Pentacostalist church in Sweden, was tried, convicted, and sentenced to a month in prison for a sermon that insulted homosexuals.
It may seem that legal recognition of civil unions or gay marriages is a trivial matter and one that respects the basic dignity of gay people. The unintended legal consequences that flow from such recognition, however, present a serious threat to religious liberty. Courts and legislatures need to consider these consequences before committing the nation to a policy with so many potential pitfalls.
Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).
Printed with permission from Inside Catholic.