After gay marriage, can we move from battleground to common ground?

Jul 7, 2015

By Charles C. Haynes
Inside the First Amendment 

     In recent years, religious freedom — or, more precisely, religious-freedom claims — have been front and center in the battle over same-sex marriage.

     From bitter debates in Arizona and Indiana to the grand compromise in Utah, proponents and opponents have shouted past one another about if and when to grant exemptions for conscientious objectors to same-sex marriage.

     The Supreme Court's decision on June 26 in Obergefell v. Hodgesrecognizing gay marriage as a constitutional right will not end this debate. But it might, just might, move people of goodwill on both sides from battleground to common ground on how best to balance competing visions of equality and liberty.

     Writing for the majority, Justice Anthony Kennedy acknowledges that "an open and searching debate" will continue in a country with deep religious and secular convictions on all sides of arguments about the definition of marriage.

     But Justice Kennedy also sets the table for a more reasonable, productive dialogue by reminding Americans of the need to uphold religious freedom even as we recognize marriage equality.

     "The First Amendment ensures that religious organizations and persons are given proper protection," Kennedy writes, "as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."

     The big question now, of course, is the meaning of "proper protection." Beyond the freedom of religious groups to perform marriages in accordance with their faith — a right no one save a few alarmists believe is threatened in America — how will we address the broad range of religious-freedom claims that will flow from the Court's same-sex marriage decision?

     "Hard questions arise," writes Justice John Roberts in his dissent, "when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage — when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples."

     As the country struggles with these and similar dilemmas, it is worth noting that a majority of Americans do not believe that the Supreme Court's ruling in favor of gay marriage will undermine religious freedom, according to a State of the First Amendment Survey released on July 3 by the Newseum Institute's First Amendment Center.

     When asked (before the decision) about the impact on religious freedom of a Supreme Court ruling legalizing same-sex marriage, 54% of Americans believe the decision would have no lasting impact on religious freedom. Just under a third (31%) think the decision would be harmful to religious freedom, while 8% say it will be good for religious freedom.

     In other words, beyond extreme voices that dominate our culture wars, a majority of people appears to believe we can simultaneously recognize marriage equality and uphold religious freedom.

     While polls tell us that some 60% of Americans now support same-sex marriage as a constitutional right, the First Amendment Center's survey suggests that a majority would also favor granting some accommodations to religious objectors to same-sex marriage.

     When asked about wedding providers, for example, a majority (55%) would not require vendors with religious objections to same-sex marriage to serve same-sex couples. Just two years ago, that number was 45%. As support for gay marriage has grown so, apparently, has support for finding ways to address religious claims of conscience.

     Despite these numbers on the wedding vendor issue, proposals for religious exemptions that allow refusal of services in places of public accommodation are deeply divisive — and unlikely to be enacted (think Arizona and Indiana). But other accommodations — especially for religiously affiliated groups — may be more easily agreed to by people on all sides now that the Supreme Court has settled the marriage question.

     If it is true (and polls can only tell us so much), that most Americans support both same-sex marriage and some accommodation for religious objectors, then we may have an opportunity to reset the debate — and engage, at long last, in a civil dialogue over how best to balance equality and liberty now that same-sex marriage is the law of the land.

     Civility in this arena will be not easy to achieve. Culture warriors are adept as sustaining anger (and raising money) long after the battle is lost.

     Nevertheless, most Americans cherish both equality and liberty — and that alone may give political and religious leaders of goodwill the courage to seek common ground.

Charles C. Haynes is vice president of the Newseum Institute and executive director of the Religious Freedom Center. E-mail: chaynes@newseum.orgWeb: Twitter: @hayneschaynes

For more information about the 2015 State of the First Amendment Join the conversation on Twitter: #SOFA15