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Protecting rights of conscience

San Francisco 9th Circuit Court of Appeals
San Francisco 9th Circuit Court of Appeals
Associated Press

View the Sunday edition article "Colliding causes: Gay rights and religious liberty" here.

Entering a presidential election year marked by chronically high unemployment and slow economic growth, it appeared that the most salient issues for the American people this election would be economic, not cultural. But stunning legal and administrative developments in the past few weeks have brought the foundational social issues of religious liberty, individual conscience and the definition of marriage to the forefront of public debate.

Last month, even as the Supreme Court unanimously held that the Constitution protects some employment decisions by religious organizations from second-guessing by a growing administrative state, the Obama administration issued regulations requiring religiously affiliated health care plans to offer services that are antithetical to some affected denominations' cherished religious teaching. On Friday, in the face of political headwinds, the president backpedaled from the original mandate.

And last week, efforts to redefine the institution of marriage in our society made significant headway. The Washington Legislature approved same-sex marriage in a bill that will be signed into law by Washington Gov. Chris Gregoire on Monday. And two judges on a three-judge panel at the U.S. 9th Circuit Court of Appeals in San Francisco paved the way for resumption of same-sex marriage in California by overturning Proposition 8, an amendment to the California constitution ratified by a majority of California voters that defines marriage as "between a man and a woman."

Much could be said about the appropriate institutions and processes to balance the competing claims, rights and interests that conflict when contentious social issues erupt. To what extent should courts be involved in such conflicts? What are the appropriate roles of the federal and state governments in resolving these issues? These are vital questions that this paper will address as concerns about the foundational institutions of family and faith are thrust onto the national policy agenda.

But today, we focus specifically on what these changes might mean for rights of conscience. In overturning the California constitution's definition of marriage as between a man and woman, federal circuit judge Stephen Reinhardt wrote that the definition of marriage had no effect on religious freedom. According to Reinhardt, the only purpose served by reaffirming a traditional definition of marriage was to "lessen the status and human dignity of gays and lesbians."

There are a diversity of religious views regarding marriage and same-sex relationships. Nonetheless, many organized religions understand marriage as a sacrament that provides the central principle for sexual morality. Honoring procreation and conjugal acts of unifying love as sacred, churches have long played a central role in solemnizing marriage, and using marriage as a central organizing moral principle in their doctrines and teachings. Such teachings are understood within these traditions as helping individuals make dignified and holy choices. They are motivated by concern for human flourishing through families, not anti-homosexual bigotry. Indeed, many of the religious organizations that are protective of a traditional definition of marriage have worked to protect the civil rights of gays and lesbians in housing and employment.

Judge Reinhardt's decision tried to assure religious institutions that teach, practice and solemnize marriage in the traditional way that they will not have to change policies or practices with regard to same-sex couples or to solemnize marriages that violate religious belief, citing language from a recent California court case.

But as Sara Israelsen-Hartley's report in today's Deseret News shows, religious institutions that object to same-sex marriage find that they are increasingly at risk of civil liability and penalties under state and local anti-discrimination laws.

Even as religious organizations that promote traditional marriage face increasing legal risks, as institutions they likely enjoy greater legal rights to promote their approach to marriage than do their individual members.

It is religious people whose individual rights of conscience are increasingly coming into conflict with rights asserted by gays and lesbians. And not because of anti-homosexual bigotry. In the instances of conflict reported by Israelsen-Hartley, efforts were extended to provide accommodation or referral to services readily available elsewhere. Instead of animosity toward gays or lesbians, these religious individuals feel compelled by conscience to honor what they understand to be God's core moral teaching about marriage being a sacred union of a man and woman exclusively committed to one another.

Nonetheless, some are finding themselves facing civil liability, difficulty obtaining official licensure or being dismissed from jobs because they express or act in accord with their conscience.

As some states move away from a culture and definition of marriage that has been closely associated with human flourishing, lawmakers should, at the very least, craft thoughtful exemptions that will protect the rights of conscience, not just of clergy and institutions, but of religious individuals who are trying to adhere to an ethical system of belief that they believe will bring them greater happiness and holiness.