After dust-ups involving the CEO of Chick-fil-A and the chief diversity officer of Gallaudet University, supporters of Maryland's new Civil Marriage Protection Act have taken to emphasizing the law's supposed "protections" for religious freedom. But the act, which will be on the November ballot as Question 6, will provide no meaningful protection for what has been called America's "first freedom." And this should worry everyone, whatever their feelings about same-sex marriage.
The new law purports to exempt ministers from being forced to perform marriages contrary to their religious organizations' teachings and to grant churches "exclusive control" over their marriage-related doctrines. Of course, these "protections" are not new -- they are already required under settled law, interpreting the Free Exercise Clause of the U.S. Constitution's First Amendment.
The one provision that may go somewhat beyond the First Amendment says that, as long as they don't accept any public funding, religious organizations and entities "related to" them -- like the Knights of Columbus -- cannot be required to provide goods or services related to the "celebration" or "promotion" of same-sex weddings. But the Knights may be required to recognize such a marriage -- for example, through employee benefits -- their religious beliefs notwithstanding.
Much worse, the act's religious protections do nothing to prevent state and local governments from using their tax and procurement systems to punish religious bodies for adhering to their beliefs on marriage. Most gay rights groups view religious opposition to same-sex marriage as morally equivalent to the historical opposition of some Southern religions to mixed-race marriage and dating. And many gay rights advocates have called for revoking the tax-exempt status of (or denying government contracts to) religious organizations that refuse to accept a new definition of marriage -- just as the IRS has successfully revoked the tax-exempt status of a religious college that opposed interracial dating. The act not only fails to prevent such backdoor attacks on religious freedom; it actually paves the way for them.
The critical question for Maryland voters, then, is whether we really want to transform Maryland from an historic protector of Catholics and other religious minorities into a persecutor of most Abrahamic religious institutions -- Christian, Jewish and Muslim -- based on their theology of the family. A few small denominations (such as the U.S. Episcopal Church) have accepted same-sex marriage, but the vast majority reject it on theological grounds. If the act passes, all the organizations affiliated with these faiths will face new risks.
The act also provides no protections for individuals with religious objections to providing goods or services for same-sex weddings. Examples abound of wedding photographers, bed-and-breakfast proprietors and other merchants of wedding-related services being fined, prosecuted or sued for refusing on conscience grounds to participate in same-sex unions. If the Maryland act goes into effect, most people of faith who provide such services will be subject to expensive discrimination claims just for adhering to their religions' teachings. Do we really want to force the vast majority of Marylanders who provide such services to choose between their careers and the teachings of their faith?
Finally, the law will dramatically increase the threats to religious freedom in our public schools. For example, it will make it more difficult for parents to object successfully when their children are taught about sexuality and families in a way that overtly criticizes their deeply held beliefs -- as the Montgomery County Schools did a couple of years ago, before a court made them stop. Do we really want to push even more people of faith out of our public schools, and thus further weaken political support for public education and the taxes it requires?
In short, the religious-freedom "protections" in the new same-gender marriage law are flimsy. Whatever one thinks about same-sex marriage, the law's threat to religious liberty is a powerful reason to oppose it, and to vote against Question 6.
Gene Schaerr is a constitutional and appellate attorney who often represents major religious institutions. He resides in Rockville, Md.