penquin wrote:After all, there already are laws on the books, in some states, that makes it illegal to discriminate based on sexual orientation. Is it really so outrageous to think those laws could be applied to those who refuses to do any GLBT weddings?
Pretty much, yes. Especially if we're talking about churches.
Same-sex marriage has been around long enough that there are starting to be cases testing what happens when someone refuses to host or authorize or conduct a same-sex marriage (in states where SSM is legal).
There are also laws on the books that make it illegal to discriminate based on race, which might be used as an analogy here.
In Louisiana in 2009, a Justice of the Peace (i.e., elected official) drew attention for his policy of not signing marriage licenses for interracial couples
. He later resigned in the face of a lawsuit.
In upstate New York in 2011, a Town Clerk refused to sign a marriage license for a same-sex couple
. The state had previously warned town clerks that they could be charged with a misdemeanor for refusing to issue marriage licenses to same-sex couples. The Ledyard, NY town clerk arranged for her deputy to sign the licenses in her stead, and was later re-elected.
In general, state SSM laws make it clear that if a notary public marries opposite-sex couples they have to marry same-sex couples. See for example, this article about a recent case in Maine
. The article ends on an interesting note:
Both men were surprised to be turned away from a town office where they had registered to vote, paid taxes, bought dog licenses and registered vehicles numerous times without incident.
The experience was particularly offensive to Hirschmann, a retired career Navy officer and a former Portland firefighter and paramedic.
"I worked for the government my whole life," he said. "I never had the option to say, 'No, I don't want to do my duty because it goes against my political or religious beliefs or because it makes me feel bad.' "
What about churches? In general, legal experts say that churches themselves have absolute control over whom they accept as members, who they allow to marry, etc. Anti-SSM advocates have suggested that churches risk losing their tax-exempt status if they discriminate, but legal experts suggest that won't happen
In 2012 a Mississippi church refused to marry couple because they are black
. The minister did ultimately perform the marriage, but at another church elsewhere. The church faced an extremely negative public reaction, but as far as I can tell there's been no legal consequences.
In 2011 a Kentucky church briefly voted to ban interracial couples from membership and participation in church services
. The church later reversed itself, claiming that it would be illegal for the church's bylaws to violate non-discrimination laws, but it's not clear to me that this is true.
One frequently cited case in the other direction involves Bob Jones University, which lost its tax-exempt tax-exempt status over its ban on interracial dating
. My understanding is that the court limited its ruling to BJU's role as an educational institution, so the case would not set a precedent for churches.
Likewise, a New Jersey Methodist association was given a tax break for its boardwalk pavilion on the grounds that it was open to the general public. When they prevented same-sex couples from having civil union ceremonies in the pavilion
, the courts removed the pavilion's tax-exempt status, though they kept that status for the rest of the association's property.
In general, most experts seem to think that government officials will not
be allowed to deny marriage licenses to same-sex couples, while churches will
be allowed to refuse to perform same-sex marriages. The gray zone is whether private businesses will be allowed to discriminate. For example, there have been multiple cases of bakeries refusing to provide same-sex couples with wedding cakes -- as far as I can tell, none of the cases have led to legal action. On the other hand, a prominent New Mexico case involving a photographer who refused to photograph a same-sex commitment ceremony has been working its way through the courts for years
, and at least one inn has decided not to host wedding receptions at all, after settling a lawsuit over their refusal to host a same-sex wedding reception
This question involves the intersection of three legal issues that have all been evolving rapidly during the past couple of decades -- same-sex marriage, non-discrimination laws, and freedom-of-religion laws. Can pharmacists refuse to dispense contraceptives to unmarried people? Can churches, or private businesses, limit their involvement in same-sex marriage? What about individuals who happen to hold government positions (like town clerks) that are involved in marriage?
A couple of decades ago the idea that we'd even be discussing this would have seemed incomprehensible to most people. Given the pace of social change on this issue, I wouldn't be confident making any
prediction about what it will look like in another two decades. I can honestly see any outcome as possible, from one extreme (court decisions guaranteeing individuals' religious freedom to refuse to have any connection with same-sex marriages) to the other (strict application of non-discrimination laws).