An anti-gay-marriage group made big news this month by producing a television ad starring Carrie Prejean, the Miss USA runner-up whose opposition to same-sex marriage might have cost her the crown. Featuring footage of Prejean's response to a gay-marriage question at the recent Miss USA pageant, the spot triggered charges that she violated her Miss California contract—which restricts work with advocacy groups—and turned Prejean into a national spokeswoman for religious conservatives.
But Prejean's ad was noteworthy for another reason. Whereas religious conservatives have argued for years that legalized gay unions would undermine the basic family unit, her commercial took a much different tack. Legalized same-sex marriages, the commercial warns, threaten gay-marriage opponents' religious liberties. "Gay-marriage activists...want to silence opposition," says a voice in the ad as the words Protect Religious Liberty flash across the screen. "The gay-marriage movement says that if you oppose same-sex marriage, you're a bigot," says Maggie Gallagher, president of the National Organization for Marriage, the group behind the ad. "So there's going to be a lot of legal pressure on religious people and organizations that as a matter of conscience can't treat same-sex marriage like traditional marriage."
In the five states that have legalized gay marriage, religious conservatives say those pressures have already arrived. After Massachusetts legalized gay marriage in 2004, for example, the Roman Catholic Archdiocese of Boston stopped providing adoption services, saying that placing children with same-sex parents would violate church teaching. Gay rights advocates argue that such faith-based objections should not exempt organizations from treating legally married gays and lesbians the same as other couples. Which means that as more states legalize gay marriage—legislatures in New York and Connecticut are now considering the move, and Congress is reviewing the District of Columbia's recent council vote to recognize gay marriages performed in other jurisdictions—more thorny legal battles are likely to break out between gay couples and conservative believers.
"Many religious conservatives would like to put gays back in the closet, and many gays and lesbians would like to put conservative churches in the closet," says University of Michigan Law School Prof. Douglas Laycock, who coedited the recent anthology Same-Sex Marriage and Religious Liberty: Emerging Conflicts. "There's not a lot of willingness on either side to let the other just live its life."
The states that have legalized gay marriage—Connecticut, Vermont, Iowa, and Maine, in addition to Massachusetts—have carved out exemptions protecting clergy and houses of worship from having to perform same-sex weddings. Most gay rights groups say they're fine with that. "Churches are never going to have to perform or recognize a marriage that they object to," says Brian Moulton, chief counsel for the Human Rights Campaign, the nation's largest gay rights group.
Some states, like Vermont and Connecticut, have gone further, exempting religious groups from having to provide services like adoption or marriage counseling to legally married gay couples. This week, New Hampshire Gov. John Lynch, a Democrat, said he'd sign a gay marriage bill passed by the state legislature if it was amended to include similar exemptions. But others have left the matter open, ensuring legal battles. In Iowa, for instance, conservative Christian groups argue that county clerks who object on religious grounds to the state Supreme Court's recent legalization of gay marriage should not have to grant marriage licenses to same-sex couples. "As long as we have a constitutional protection for religious liberty, we have arguments for religious believers in states that have legalized same-sex marriage," says Jim Campbell, litigation counsel for the Alliance Defense Fund, which represents same-sex-marriage opponents in Iowa and other states. (On the flip side, while some gay couples argue that equal protection under the Constitution requires that a legal gay marriage in one state be honored in the others, the 1996 Defense of Marriage Act allows states to disregard licenses granted to gay couples elsewhere).
The legal battles between religious conservatives and married gay couples are so new that it's hard to tell who will win in which states. But some legal scholars are encouraging the two sides to sit down and hash out laws that grant gay couples real rights but carve out significant exemptions for religious groups and socially conservative business owners. "There will be some hard cases, but there are relatively simple solutions here," Laycock says.
But gay rights advocates oppose exemptions for religious organizations and individuals that go further than letting them opt out of gay marriage ceremonies. "Denying equality in a public service based on a person's religious convictions about same-sex marriage would set a dangerous precedent," Moulton says. "What if I have a religious conviction against allowing women to work for my business or against allowing people of other religions from coming into my store?"
Religious conservatives, meanwhile, are reluctant to work with gay rights groups in crafting such legislation, because they oppose it. "I still believe that marriage should be between a man and a woman," Gallagher says. As more states legalize gay marriage, then, both sides are likely to see each other in court.