Heritage Foundation Leadership for America

Redefining marriage to include same–sex unions poses significant threats to the religious liberties of people who continue to believe that marriage is a rela­tionship between a man and a woman. These threats have loomed large for several years, but recent devel­opments, including the recent Connecticut and Cali­fornia judicial decisions redefining marriage to include same–sex unions, have refocused attention on the issue in a new, particularly urgent way.

Our society has traditionally considered marriage to be an exclusive relationship between a man and a woman based on the understanding that marriage is a fundamental social institution ordered to the com­mon good through the bearing and raising of chil­dren. But advocates of same–sex marriage consider the traditional understanding of marriage to be a form of irrational prejudice against homosexuals because it excludes them from marriage and the ben­efits that go with it. In this view, rationales regarding the bearing and raising of children are flawed or, at least, insufficient bases for defining marriage as a relationship between a man and a woman.

The idea that marriage is a relationship between a man and a woman is a core religious belief for sig­nificant numbers of Americans. But the freedom to express this and other beliefs about marriage, fam­ily, and sexual values will come under growing pres­sure as courts, public officials, and private institutions come to regard the traditional under­standing of marriage as a form of irrational preju­dice that should be purged from public life. The concept of marriage is too intertwined in our law and customs, and religious individuals and institu­tions are too integrated in the social and political lives of our communities, to avoid these conflicts.

Specifically, in a society that redefines marriage to include same–sex unions, those who continue to believe marriage is a relationship between a man and a woman can expect to face three types of burdens.

First, within the sphere of the administrative state, officials working out the implications of same–sex marriage will place several types of burdens on individuals and institutions that continue to believe marriage involves a man and a woman. For example, governments may require full acceptance of same–sex unions in programs or activities that are con­ducted or financially assisted by the state. Religious institutions that believe in marriage could lose equal access to public facilities. Churches that refuse to rent facilities for same–sex weddings could forfeit tax exemptions for those facilities. Public school stu­dents and teachers may be required to participate in classroom instruction about homosexual relation­ships that violates their religious beliefs. And public employees who express their belief in marriage could face the threat of discipline, demotion, and even termination.

Second, those who support the traditional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sex­ual orientation, marital status, and gender. Faith–based charities that provide valuable social services could be effectively shuttered by nondiscrimina­tion laws that would require them to violate their religious beliefs by, for example, placing adopted children in same–sex households. Small–business owners could face significant liability under non­discrimination laws that would force them to pro­vide goods and services in situations—like same–sex weddings or civil union ceremonies—that vio­late their religious beliefs. Religious landlords, including religious educational institutions with married student housing, could encounter conflicts with their beliefs if forced to house same–sex cou­ples under laws that prohibit discrimination based on marital status and sexual orientation. And pro­fessionals could be forced to violate their religious beliefs by nondiscrimination laws that, for exam­ple, would make it unlawful to decline to provide fertility services to a same–sex couple.

Although similar burdens can arise under non­discrimination laws even in states that continue to define marriage as between one man and one woman, granting legal recognition to same–sex unions can reasonably be expected to amplify these burdens by significantly increasing the occasions of conflicts with religious liberty. In many cases, a per­son's sexual orientation is simply not relevant to the beliefs of individuals and institutions that support the traditional understanding of marriage and therefore presents no conflict under nondiscrimina­tion laws. But officially licensed same–sex unions involve a public recognition of sexual union, which means they can make orientation relevant and impossible to ignore where religious beliefs prohibit expressing support for or facilitating openly homo­sexual conduct. As a result, the number of potential religious liberty conflicts stemming from the appli­cation of nondiscrimination laws will increase sig­nificantly in states that grant legal recognition to same–sex unions.

Third, the existence of nondiscrimination laws, combined with the administrative policies of the state, can invite private forms of discrimination against religious individuals who believe that mar­riage involves a man and a woman and foster a cli­mate of contempt for the public expression of their views. For example, private employers could become more likely to discipline or even terminate employees who express their beliefs about marriage or refuse to sign diversity statements requiring them to affirm same–sex unions. Religious professionals who consider same–sex unions to be immoral could also face serious conflicts if the private institutions that license and establish standards for social work­ers, counselors, attorneys, doctors, and members of other helping professions require applicants to con­done same–sex relationships.

America's long tradition of supporting religious freedom requires a full accounting of the dangers to religious liberty posed by redefining marriage. This tradition reflects the importance our society attaches to each person's duty to honor his or her conscience and the role religious freedom plays in securing the rights of all citizens to be free from undue coercion by the state. Because religious freedom is a precondition for a civil and free society, citizens of all faiths—and no faith at all—have a deep interest in protecting the rights of others to honor the dictates of their con­science even when others, or even a majority of oth­ers, would reach a different conclusion.

Preserving marriage as a relationship between a man and a woman is the most effective way to avoid the dangers to religious liberty associated with granting legal recognition to same–sex unions. At a minimum, however, lawmakers should provide exemptions where changes in marriage policies and nondiscrimination laws would force individuals and institutions to violate their beliefs.

Thomas M. Messner is a Visiting Fellow in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.