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'A coming storm'

Government | A federal constitutional amendment may be the only way to head off a church-state clash over same-sex marriage

Issue: "Bird flu," June 10, 2006

When he saw the news story, Anthony Picarello did a double-take. On Monday, May 22, more than 30 religious leaders from 10 states traveled to Washington, D.C., to voice their concerns over same-sex marriage and religious freedom. Mr. Picarello, president of the Becket Fund for Religious Liberty, read an online account of a press conference held in conjunction with the trip.

"To consciously legislate against religious traditions . . . is really an affront to my faith," Craig Axler, leader of Reform Congregation Beth Or in Maple Glen, Pa., told reporters.

But Mr. Axler and his group, "Clergy for Fairness," weren't rallying against same-sex marriage. They were complaining that the Federal Marriage Amendment, scheduled for a June 5 vote in the U.S. Senate, "raises alarming constitutional concerns" because defining marriage as between one man and one woman would restrict the liberty of religious leaders who, like Mr. Axler, want to be able to marry same-sex couples.

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"The story had the feel of the world turning upside down," Mr. Picarello said.

Particularly since he himself had just made public the findings of 10 top First Amendment scholars who concluded that broadly legalizing same-sex marriage will likely roll back religious freedom for everyone but those who agree with Mr. Axler.

In May, the Becket Fund published a series of scholarly papers generated from a December 2005 conference at which First Amendment scholars and lawyers-several of whom favor or are undecided on gay marriage-weighed in on a series of critical questions: If same-sex marriage is the law of the land, can government then force traditional religious groups to treat same-sex and different-sex marriages exactly alike? Can the government punish groups that resist by denying them government benefits-including tax exemption? What religious freedom defenses can be exerted and which will succeed?

From the perspective of religious conservatives, the answers weren't good.

Marc Stern, general counsel for the American Jewish Congress and a go-to guy for liberals grappling with civil rights, said legal same-sex marriage would set church and state on "a collision course," triggering "a sea change in American law . . . [that] will reverberate across the legal and religious landscape in some ways that are totally unpredictable." George Washington University law professor Jonathan Turley termed the clash "a coming storm."

Among other scholars weighing in: Georgetown University law professor and gay-rights activist Chai Feldblum, University of Maryland law professor Robin Wilson, and Douglas Kmiec, a professor of constitutional law at Pepperdine University. Messrs. Turley and Stern, as well as Ms. Feldblum, support gay marriage. Ms. Wilson is undecided and Mr. Kmiec is opposed.

Thus, the Becket Fund's panel could hardly be said to have an anti-gay-marriage bias. And yet its findings on the questions at hand showed same-sex marriage sharply curtailing, and in some cases wiping out, the religious freedom of its opponents in spheres ranging from taxation, charitable giving, housing, public accommodation, and employment to licensure, professional practice, education, and equal access. (See sidebar below.)

That's because the term marriage and its legal emanations echo throughout the canons of American law, Mr. Picarello said. "Once you change the definition of marriage, you don't change one law, you change thousands of laws."

This is particularly true of the legal touch-points between government and religious institutions like churches, hospitals, schools, and social services groups. Such entities are subject to most of the same regulations as nonsectarian agencies, but that regulation is largely invisible.

"Most people don't trouble themselves with it because it's a mostly harmonious border," Mr. Picarello said. "But same-sex marriage is like a switch. Flip it and you've converted the peaceful border to a hostile one all at once."

Boston Catholic Charities (BCC) provided the first case in point. In November 2003, ignoring the entire canon of U.S. family law, the United Nations 1948 Declaration of Human Rights (which recognized marriage as between a man and a woman), the federal Defense of Marriage Act, and the totality of human history, the Massachusetts Supreme Judicial Court declared that only anti-gay bias could explain why the state's marriage laws excluded same-sex couples. The court ruled the state's man/woman marriage laws unconstitutional and ordered lawmakers to create new ones. Six months later, county clerks in the state began issuing same-sex marriage licenses.

In a separate development, the Vatican issued a statement declaring that the placement of adoptive children with same-sex couples violated Catholic teaching. BCC, which for over a century had helped find adoptive homes for hard-to-place children, had placed a few children with gay couples. But in October 2005, Cardinal Sean O'Malley of the Archdiocese of Boston said the agency would comply with the Vatican mandate.

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