WASHINGTON (CNS) — After years of public disagreement about the rights of states, communities and the federal government to define marriage, two state legislatures have proposed differing means of reconciling the conflicting interests of gay rights groups and proponents of religious liberty.
The legislatures of Oklahoma and Utah, respectively, have passed bills aimed at providing access to state marriage benefits to same-sex couples while protecting the rights of clergy and laity to hold to their beliefs about traditional marriage being between one man and one woman.
In Oklahoma, H.B. 1125, which was referred to the state Senate March 16, would create a system whereby the state of Oklahoma no longer issues marriage licenses, but simply records them.
In Utah, lawmakers passed landmark legislation with S.B. 296, which removes barriers to meeting basic employment and housing needs of members of the lesbian, gay, bisexual and transgender community, and a companion bill S.B. 297, which protects religious exemptions for clergy and religious organizations that are morally opposed to same-sex marriage.
According to the Oklahoma bill’s language, all marriages in the state would be considered valid to be recorded as long as they are “contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary.”
It also provides special exemptions for such groups as Quakers, Mormons and Baha’is, “which have no ordained minister,” allowing the ceremony to “be solemnized by the persons and in the manner prescribed by and practiced by any such society.” Marriages not done in such a fashion may also be recorded after filing an affidavit of common law marriage with a court clerk.
Republican Rep. Todd Russ, the bill’s author, told Catholic News Service that “the change is in taking the gatekeeper out of the government,” he explained, “and leaving it up to the clergy and the people.”
Russ called opponents’ claims that this would prohibit gay people or atheists from getting married “preposterous,” citing the bill’s provisions that would also allow for marriage affidavits, as well as weddings, to be performed by gay-affirming denominations.
“It doesn’t prohibit anyone who can already get married today from getting married,” Russ told CNS, “and it’ll be a very legal, very legitimate marriage, just like it’s always been.” Same-sex marriage has been legally recognized in Oklahoma since last October.
Russ said that “many years ago, even the king went to the priest to ask for marriage, but over time, society has turned it into a government contract … so it’s time to get the government out of the practice.”
Utah’s legislation, which Republican Gov. Gary Herbert signed it into law March 12, removes barriers to meeting basic employment and housing needs of members of the lesbian, gay, bisexual and transgender community while protecting religious liberty.
Regarding the latter, it focuses on providing universal access to state-issued marriage licenses while carving out specific provisions and protections for clergy whose faith will not allow them to take part in such unions, as well as free speech protections for both proponents and opponents of same-sex marriage.
These speech protections would protect employees from being terminated on the grounds of their public support of either view of marriage as long as no individuals harass those with opposing viewpoints.
Leaders of the Church of Jesus Christ of Latter-day Saints, which like the Catholic Church opposes same-sex marriage, and gay rights advocacy groups worked together on the measure to strike a balance between their respective rights.
“Greater protections are in everyone’s best interest,” said Sarah Warbelow, legal director of the Human Rights Campaign, at a Brookings Institution event in Washington March 16. Warbelow, and added that she believed that “what individuals say and how they express themselves should not be grounds for termination.”
Another speaker at the event, Robin Fretwell Wilson, a law professor at the University of Illinois, clarified that S.B. 296 is not the same thing as the kinds of Religious Freedom Restoration acts that have been passed by several legislatures in the past.
According to Wilson, the Utah measure “draws careful lines” and focuses on providing specific exemptions that a Religious Freedom Restoration Act does not. “Those specific exemptions do the kind of work that RFRAs can’t,” she said, explaining that the appeals process provided for in Utah’s legislation is actually much easier than fulfilling the burden of proof necessary to satisfy the protection requirements of the alternative kind of law.
The Religious Freedom Restoration Act, known as RFRA, is a federal law mandating the courts protect religious liberty by stating religious freedom can only be limited by the “least restrictive means of furthering a compelling government interest.” The federal law does not apply to the states, so 19 states have passed their own RFRAs that apply to their individual state and local governments.
Peter Breen, special counsel at the nonprofit law firm Thomas More Society, told CNS that the idea of RFRA “is to provide a broad fence around the core right of the free exercise of religion.”
“While religion usually has a communal aspect, by its nature, religion also has a strong individual aspect,” he said, “and so, the act does not try to legislate every little exception that this or that religion might have to a law. In fact, the process of deciding, by majority vote, which religions should get exceptions and which should not, may itself set a dangerous precedent.”
RFRA “sends a message to those within the government that, when in doubt, err on the side of religious freedom,” said Breen.
During an earlier panel at the Brookings event, former Utah Gov. Michael Leavitt explained the spirit of Utah’s compromise by saying that “every faith community has to come to appreciate that we live in a democracy; the instruments of democracy will decide what government will protect and what society will value. Churches have to decide on their doctrine. If there’s ever a point where conscience is not protected, then the security and capacity for that society to live in peace will go away.”
Utah and Oklahoma are not the only states to attempt to pass such measures geared at finding local-level compromises at the local level on an issue that has seemed intractable for years.
Other states such as Texas, Alabama, Arkansas and Indiana have all introduced legislation aimed at simultaneously protecting both gay interests and religious and conscience rights over the past few years; however, none have so far been passed as law.
Proponents of such legislation hope that dialogue and compromise can lead to other such measures in states where previous discussions have focused either all-or-nothing approach to the marriage debate.
Leavitt said that he hopes the Utah measure can provide a “legislative toolkit” that will allow states and local governments to find “solutions, rather than zero-sum games.”
“If organizations have been accustomed to focusing on the zero-sum approach,” then such a compromise would not appeal to them, Leavitt said, adding that “you cannot have a society that can be preserved in peace without the protection of conscience.”