Religious institutions already losing legal battles Same-sex marriages could have snowball effect
Pastor Dale Morgan
Religious institutions already losing legal battles Same-sex marriages
could have snowball effect*
Religious institutions already losing legal battles
--National Public Radio
Harriet Bernstein and Luisa Paster sued after a religious group denied
the use of a beachside pavilion the couple had wanted to use as the site
of their wedding. The couple won.
Paster and Bernstein look through their wedding photo album. Instead of
marrying at the pavilion, the couple wed on a pier in New Jersey.
The Coming Storm?
Same-sex couples are challenging religious organizations' policies that
exclude them, claiming that a group's view that gay marriage is a sin
cannot be used to violate their right to equal treatment. So far, the
religious groups are losing. Read a few cases.
The pavilion is an open-air building with long benches looking out to
the Atlantic Ocean. It is owned by the Ocean Grove Camp Meeting Association.
The Rev. Scott Hoffman, the administrator for the Ocean Grove Camp
Meeting Association, says the group believes a marriage is between a man
and a woman.
Morning Edition, June 16, 2008 · As gay couples in California head to
the courthouse starting Monday to get legally married, there are signs
of a coming storm. Two titanic legal principles are crashing on the
steps of the church, synagogue and mosque: equal treatment for same-sex
couples on the one hand, and the freedom to exercise religious beliefs
on the other.
The collision that will play out over the next few years will be filled
with pathos on both sides.
Act One: A Love Story
Harriet Bernstein, mother of two and grandmother of six, realized a few
years ago that she was drawn to women. She lives in Ocean Grove, N.J., a
quiet beach town known as "God's Square Mile," because the land is owned
by a Methodist retreat center, formally known as Ocean Grove Camp
Meeting Association.
Eight years ago, she went on a retreat with Jewish gay men and lesbians
in the Poconos Mountains and met her future wife.
"I took a chance and went up for a weekend of cross-country skiing and
ice skating," Bernstein recalls. "And I saw this lovely lady across a
crowded room, as they say in South Pacific, and immediately decided she
was somebody I wanted to get to know. And I did."
"We came together like magnets," Luisa Paster adds. "We had all our
meals together. We went cross-country skiing. And we exchanged phone
numbers at the end of the weekend."
Bernstein and Paster formalized their union last year, a few months
after New Jersey legalized civil unions.
Bernstein fetches the wedding album and flips past photos of the rabbi,
the cake (adorned with two brides), and various shots of the two
outdoorsy, gray-haired women smiling as they stood on the boardwalk in
their white tunics and pants.
Paster then reads the invitation to their civil union, emphasizing the
ambiguous wording.
"Location to be announced," she reads. "That's because we had to send
out the invitations before we had final word on whether we could use the
pavilion."
Act Two: The Conflict
The pavilion in question is an open-air building with long benches
looking out to the Atlantic Ocean. It is owned by the Ocean Grove Camp
Meeting Association.
"A building very similar to this has been on this site since the late
1800s," says the Rev. Scott Hoffman, the group's administrator.
During the summers, Hoffman says, the pavilion is used for Bible
studies, church services, gospel choir performances and, in the past at
least, weddings. Heterosexual weddings.
When Bernstein and Paster asked to celebrate their civil union in the
pavilion, the Methodist organization said they could marry on the
boardwalk — anywhere but buildings used for religious purposes. In other
words, not the pavilion. Hoffman says there was a theological principle
at stake.
"The principle was a strongly held religious belief that a marriage is
between a man and a woman," Hoffman says. "We're not casting any
aspersions or making any judgments. It's just, that's where we stand,
and we've always stood that way, and that's why we said no."
The refusal came as a shock to Bernstein, who says Ocean Grove has been
revived by the gay community.
"We were crushed," she says. "I lived my whole live, fortunately,
without having any overt prejudices or discrimination waged against me.
So while I knew it was wrong, I never knew how it felt. And after this,
I did know how that felt. It was extremely painful."
Luisa says that initially, they walked away from the situation. "We were
so stunned, we didn't know what to do. But as we came out of our initial
shocked stage, we began to get a little angry. We felt an injustice had
been done," she says.
So the couple filed a complaint with New Jersey's Division of Civil
Rights, alleging the Methodists unlawfully discriminated against them
based on sexual orientation. Attorney Lawrence Lustberg represents them.
"Our law against discrimination does not allow [the group] to use those
personal preferences, no matter how deeply held, and no matter — even if
they're religiously based — as a grounds to discriminate," Lustberg
says. "Religion shouldn't be about violating the law."
The Methodist organization responded that it was their property, and the
First Amendment protects their right to practice their faith without
government intrusion. But Lustberg countered that the pavilion is open
to everyone — and therefore the group could no more refuse to
accommodate the lesbians than a restaurant owner could refuse to serve a
black man. That argument carried the day. The state revoked the
organization's tax exemption for the pavilion area. Hoffman figures they
will lose $20,000.
Now, with the help of the Alliance Defense Fund (ADF), a Christian legal
firm, Hoffman is appealing the case to state court. He says religious
freedom itself is in jeopardy.
"And that potentially affects every religious organization in America,
not just Christian organizations, but every religious organization. And
I get calls from Jewish rabbis who are equally concerned — people from
across the spectrum who think it's a battle worth fighting. And we
agree," Hoffman says.
Act Three: A Nationwide Story
As states have legalized same-sex partnerships, the rights of gay
couples have consistently trumped the rights of religious groups. Marc
Stern, general counsel for the American Jewish Congress, says that does
not mean that a pastor can be sued for preaching against same-sex
marriage. But, he says, that may be just about the only religious
activity that will be protected.
"What if a church offers marriage counseling? Will they be able to say
'No, we're not going to help gay couples get along because it violates
our religious principles to do so? What about summer camps? Will they be
able to insist that gay couples not serve as staff because they're a bad
example?" Stern asks.
Stern says if the early cases are any guide, the outlook is grim for
religious groups.
A few cases: Yeshiva University was ordered to allow same-sex couples in
its married dormitory. A Christian school has been sued for expelling
two allegedly lesbian students. Catholic Charities abandoned its
adoption service in Massachusetts after it was told to place children
with same-sex couples. The same happened with a private company
operating in California.
A psychologist in Mississippi who refused to counsel a lesbian couple
lost her case, and legal experts believe that a doctor who refused to
provide IVF services to a lesbian woman is about to lose his pending
case before the California Supreme Court.
And then there's the case of a wedding photographer in Albuquerque, N.M.
On January 28, 2008, the New Mexico Human Rights Commission heard the
case of Vanessa Willock v. Elane Photography.
Willock, in the midst of planning her wedding to her girlfriend, sent
the photography company an e-mail request to shoot the commitment
ceremony. Elaine Huguenin, who owns the company with her husband,
replied: "We do not photograph same-sex weddings. But thanks for
checking out our site! Have a great day!"
Willock filed a complaint, and at the hearing she explained how she felt.
"A variety of emotions," she said, holding back tears. "There was a
shock and anger and fear. ... We were planning a very happy day for us,
and we're being met with hatred. That's how it felt."
Willock declined to be interviewed, as did the owners of Elane
Photography. At the hearing, Jonathan Huguenin said that when he and his
wife formed the company two years ago, they made it company policy not
to shoot same-sex ceremonies, because the ceremonies conflicted with
their Christian beliefs.
"We wanted to make sure that everything we photographed — everything we
used our artistic ability for, everything we told a story for or
conveyed a message of — would be in line with our values and our
beliefs," he said.
The defendants' attorney, Jordan Lorence at ADF, says that of course a
Christian widget-maker cannot fire an employee because he's gay. But
it's different when the company or a religious charity is being forced
to endorse something they don't believe, he says.
"It's a very different situation when we're talking about promoting a
message," Lorence says. "When it's 'We want to punish you for not
helping us promote our message that same-sex marriage is OK,' that for
me is a very different deal. It's compelled speech. You're using the arm
of the government for punishing people for disagreeing with you."
In April, the state human rights commission found that Elane Photography
was guilty of discrimination and must pay the Willock's more than $6,600
attorneys' fee bill. The photographers are appealing to state court.
In the meantime, they wonder whether all the hassle is worth it and
whether they should get out of the photography business altogether.
Georgetown University professor Chai Feldblum says it is a compelling
case of what happens in a moment of culture clash. Feldblum, who is an
active proponent of gay rights, says the culture and state laws are
shifting irrevocably to recognize same-sex unions. And while she knows
it's hard for some to hear, she says companies and religious groups that
serve the public need to recognize that their customers will be gay couples.
"They need to start thinking now, proactively, how they want to address
that. Because I do think that if a gay couple ends up being told their
wedding cannot be filmed, five couples will not sue, but the sixth
couple will."
And as one legal expert puts it, the gay couples "would win in a walk."
When Gay Rights and Religious Liberties Clash
by Barbara Bradley Hagerty
NPR.org, June 13, 2008 · In recent years, some states have passed laws
giving residents the right to same-sex unions in various forms. Gay
couples may marry in Massachusetts and California. There are civil
unions and domestic partnerships in Vermont, New Jersey, Connecticut,
New Hampshire and Oregon. Other states give more limited rights.
Armed with those legal protections, same-sex couples are beginning to
challenge policies of religious organizations that exclude them,
claiming that a religious group's view that homosexual marriage is a sin
cannot be used to violate their right to equal treatment. Now parochial
schools, "parachurch" organizations such as Catholic Charities and
businesses that refuse to serve gay couples are being sued — and so far,
the religious groups are losing. Here are a few cases:
Adoption services: Catholic Charities in Massachusetts refused to place
children with same-sex couples as required by Massachusetts law. After a
legislative struggle — during which the Senate president said he could
not support a bill "condoning discrimination" — Catholic Charities
pulled out of the adoption business in 2006.
Housing: In New York City, Yeshiva University's Albert Einstein College
of Medicine, a school under Orthodox Jewish auspices, banned same-sex
couples from its married dormitory. New York does not recognize same-sex
marriage, but in 2001, the state's highest court ruled Yeshiva violated
New York City's ban on sexual orientation discrimination. Yeshiva now
allows all couples in the dorm.
Parochial schools: California Lutheran High School, a Protestant school
in Wildomar, holds that homosexuality is a sin. After the school
suspended two girls who were allegedly in a lesbian relationship, the
girls' parents sued, saying the school was violating the state's civil
rights act protecting gay men and lesbians from discrimination. The case
is before a state judge.
Medical services: A Christian gynecologist at North Coast Women's Care
Medical Group in Vista, Calif., refused to give his patient in vitro
fertilization treatment because she is in a lesbian relationship, and he
claimed that doing so would violate his religious beliefs. (The doctor
referred the patient to his partner, who agreed to do the treatment.)
The woman sued under the state's civil rights act. The California
Supreme Court heard oral arguments in May 2008, and legal experts
believe that the woman's right to medical treatment will trump the
doctor's religious beliefs. One justice suggested that the doctors take
up a different line of business.
Psychological services: A mental health counselor at North Mississippi
Health Services refused therapy for a woman who wanted help in improving
her lesbian relationship. The counselor said doing so would violate her
religious beliefs. The counselor was fired. In March 2001, the United
States Court of Appeals for the Fifth Circuit sided with the employer,
ruling that the employee's religious beliefs could not be accommodated
without causing undue hardship to the company.
Civil servants: A clerk in Vermont refused to perform a civil union
ceremony after the state legalized them. In 2001, in a decision that
side-stepped the religious liberties issue, the Vermont Supreme Court
ruled that he did not need to perform the ceremony because there were
other civil servants who would. However, the court did indicate that
religious beliefs do not allow employees to discriminate against
same-sex couples.
Adoption services: A same-sex couple in California applied to Adoption
Profiles, an Internet service in Arizona that matches adoptive parents
with newborns. The couple's application was denied based on the
religious beliefs of the company's owners. The couple sued in federal
district court in San Francisco. The two sides settled after the
adoption company said it will no longer do business in California.
Wedding services: A same sex couple in Albuquerque asked a photographer,
Elaine Huguenin, to shoot their commitment ceremony. The photographer
declined, saying her Christian beliefs prevented her from sanctioning
same-sex unions. The couple sued, and the New Mexico Human Rights
Commission found the photographer guilty of discrimination. It ordered
her to pay the lesbian couple's legal fees ($6,600). The photographer is
appealing.
Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey,
a Methodist organization, refused to rent its boardwalk pavilion to a
lesbian couple for their civil union ceremony. The couple filed a
complaint with the New Jersey Division on Civil Rights. The division
ruled that the boardwalk property was open for public use, therefore the
Methodist group could not discriminate against gay couples using it. In
the interim, the state's Department of Environmental Protection revoked
a portion of the association's tax benefits. The case is ongoing.
Youth groups: The city of Berkeley, Calif., requested that the Sea
Scouts (affiliated with the Boy Scouts) formally agree to not
discriminate against gay men in exchange for free use of berths in the
city's marina. The Sea Scouts sued, claiming this violated their beliefs
and First Amendment right to the freedom to associate with other
like-minded people. In 2006, the California Supreme Court ruled against
the youth group. In San Diego, the Boy Scouts lost access to the
city-owned aquatic center for the same reason. While these cases do not
directly involve same-sex unions, they presage future conflicts about
whether religiously oriented or parachurch organizations may prohibit,
for example, gay couples from teaching at summer camp. In June 2008, the
federal Ninth Circuit Court of Appeals asked the California Supreme
Court to review the Boy Scouts' leases. Meanwhile, the mayor's office in
Philadelphia revoked the Boy Scouts' $1-a-year lease for a city building.