Religious Battle Over Gay Marriage


Indiana’s Gov. Mike Pence

Everyone is in the fight. Politicians, religious leaders, gay rights activists, and business owners all claim they are concerned about freedom.

Recent laws based on religious freedom have raised fears that religion will be used to justify prejudices.

In 20 states, laws have been passed that shadow a Federal law called the Religious Freedom Restoration Act (RFRA). The Federal RFRA was signed in 1993 by President Bill Clinton. The law allowed a Native American man to use peyote in a religious ceremony. However, RFRA has been used by conservatives as a means to side-step certain laws based on claims of religious interference.

Federal RFRA was the basis of the Hobby Lobby case in 2014. The U.S. Supreme Court decided in favor of the religious owners of the Hobby Lobby business that claimed the Affordable Care Act would have forced it to provide contraceptives to employees in their medical coverage. Contraceptives ran counter to their religious beliefs, they argued. The Court found that the business could have religious beliefs.

In 2010, the Court decided that a corporation could have First Amendment rights in the Citizens United case. In the Hobby Lobby case, it is not just the owners, but the corporation that can possess and exercise constitutional rights. The current controversy over religious freedom began with businesses such as caterers or wedding planners who choose not to provide wedding services for same-sex couples.

These state RFRA laws would allow private businesses to turn away customers if the requested services conflict with religious beliefs or values. Gay rights activists argue that religious fundamentalists have found a way around their right to marry. State law-makers, mostly conservatives, counter that business owners should not have to place their religious beliefs aside when faced with same-sex customers requesting certain services.

State RFRA laws would allow business to use their religious beliefs as an affirmative defense if a gay customer brought a discrimination lawsuit for failing to provide requested services based upon sexual orientation. Under these state laws, a valid defense to that discrimination lawsuit would be the religious beliefs of the business owners.

Gay rights advocates claim that conservatives have discovered a way to side-step recognizing gay marriage by stating a religious belief. Under these laws, no evidence is needed to support the sincerity of these religious beliefs. Gov. Mike Pence of Indiana, a Republican, signed the law last week amid protests from businesses like Apple, which is questioning its plans to expand operations in Indiana.

Tim Cook, CEO of Apple Computers, says the law could be used to protect businesses that refuse to serve gay people. “On behalf of Apple, I’m standing up to oppose this new wave of legislation,” he said. Indiana’s law will go into effect July of 2015.  Arkansas passed similar legislation on Tuesday. 

Protesters are concerned that religious freedom could be used by private businesses who do not want to serve customers based on race, religion, creed, gender, color, or nationality. In 2013, the Supreme Court struck down a Federal law that recognized marriage as only between a man and a woman.

The Court must now decide where the line can be drawn when it comes to gay marriage and religious freedom.


Gloria J. Browne-Marshall, an associate professor of Constitutional Law at John Jay College, is the legal correspondent for AANIC (African-American News & Information Consortium)

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