December 2014 Church & State | Featured

Religious Right attorney Mat Staver doesn’t mince words when it comes to same-sex marriage.

“This is something that I believe is the beginning of the end of Western Civilization,” Staver told a conservative radio station in October. “You can’t simply redefine and pretend that ontological differences between men and women do not exist. This will have consequences.”

Staver, who until recently served as dean of Liberty University’s law school, insisted that acceptance of marriage equality will “make the society unstable.”

He’s not the only Religious Right figure spreading gloom and doom. The nation is hearing a lot of that these days. On Oct. 6, the U.S. Supreme Court declined to hear challenges to same-sex marriage in several states. Since lower federal courts had struck down bans on same-sex marriage, the high court’s decision to not wade in had the effect of making marriage equality the law in several states – many of them in the Bible Belt.

Denunciations came quickly. Family Research Council President Tony Perkins insisted, against all available evidence, that the American people don’t support marriage equality.

“As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom…,” Perkins said in a statement. “As more and more people lose their livelihoods because they refuse to not just tolerate but celebrate same-sex marriage, Americans will see the true goal, which is for activists to use the Court to impose a redefinition of natural marriage on the entire nation.”

Former Arkansas governor and failed presidential candidate Mike Huckabee warned the Republican Party not to get cold feet over the issue.

“If the Republicans want to lose guys like me – and a whole bunch of still God-fearing Bible-believing people – go ahead and just abdicate on this issue, and while you’re at it, go ahead and say abortion doesn’t matter, either,” Huckabee said. “Because at that point, you lose me. I’m gone. I’ll become an independent. I’ll start finding people that have guts to stand. I’m tired of this.”

Other right-wing commentators piled on with lurid rhetoric. Bryan Fischer of the American Family Association (AFA), labeled the court’s action “tyranny” and wrote, “The nearest parallel we can find to what happened yesterday is the Court’s 1857 decision legitimizing the institution of sla­very….The Court was wrong in 1857 and it was wrong yesterday. It was wrong on slavery and it is wrong on sodomy.”

AFA President Tim Wildmon picked up the same theme.

“Despite the Supreme Court’s decision to ignore the issue of same-sex marriage in America, the battle to protect time-honored marriage is long from over,” he vowed. “The Dred Scott decision didn’t settle the slavery issue, Roe v. Wade didn’t settle the abortion issue, and the Supreme Court’s refusal to hear cases in the coming year will not settle the marriage issue.”

Wildmon added, “Same-sex marriage will be a litmus test for candidates running from now through 2016. Candidates who are unwilling to fight for the sanctity of God’s institution of marriage and family are not worthy of support or reelection.”

A third AFA staffer, Sandy Rios, director of governmental affairs, chimed in with this gem: “America has yet to see the fascism of the homosexual movement fully unleashed….As millions of heart broken, post-abortive women can testify, what is legal is not necessarily moral. We are not confused – only sad for the chaos brought upon our nation by its highest court.”

The American Pastors Network, a group on the far-right fringe, labeled the action an “assault on moral law,” and Peter LaBarbera, president of the rabidly homophobic group Americans For Truth About Homosexuality, called for “civil disobedience on a massive scale.”

Added LaBarbera, “God is not mocked….The truly loving thing for Christians to do is not to ‘bless’ same-sex relationships but to guide men and women caught up in false homosexual identities to the One, Jesus, who will forgive them and guide them to a life pleasing to God.”

 Government officials acted with more restraint, but many made their displeasure known. In Oklahoma, where same-sex marriages began hours after the high court turned down the cases, Gov. Mary Fal­lin grudgingly accepted the new reality.

“Today’s decision has been cast by the media as a victory for gay rights,” Fallin groused in a press statement. “What has been ignored, however, is the right of Oklahomans, and Americans in every state, to write their own laws and govern themselves as they see fit. Those rights have once again been trampled by an arrogant, out-of-control federal government that wants to substitute Oklahoma values with Washington, D.C. values.”

In Utah, a state where political life is dominated by the anti-gay Church of Jesus Christ of Latter Day Saints, state officials threw in the towel and issued a memo directing all local officials to recognize same-sex marriages.

Utah Gov. Gary Herbert acknowledged that not everyone will be happy but concluded, “[I]t is the law of the land.”

But other governors have decided to go down kicking and screaming. Governors in some states that were not direct parties to the lawsuits but are in the same circuit are vowing to resist. (Federal appeals courts are divided into circuits. Each circuit contains several states, and decisions made affecting one state also apply to the others.)

South Carolina is an example. A challenge to a prohibition on same-sex marriage in Virginia was successful when the U.S. 4th Circuit Court of Appeals invalidated the ban. The ruling includes South Carolina as well, but Gov. Nikki Haley has vowed to fight it.

 It will be a futile battle, legal experts say.

“The state can continue to fight if it wants, but it’s a waste of taxpayers’ money,” Donald Songer, a University of South Carolina political science professor, told the Charlotte Observer. “[Haley and Attorney General Alan Wilson] are going to lose, but they may feel politically they don’t want to give in and have people say they are responsible for gay marriage in South Carolina.”

Although the Supreme Court has yet to issue a ruling extending marriage equality nationwide, many legal observers believe that’s just a matter of time. In the interim, same-sex marriage is spreading to more states – and the Religious Right is shifting its focus.

The movement’s leaders continue to rant about the sanctity of “traditional marriage,” but the legal landscape is changing. In court, much of the action now focuses on so-called “refusal” cases, that is, individuals who insist that serving LGBT couples violates their religious freedom.

Several cases have already arisen among businesses that cater to couples planning a wedding. In some states, bakers, florists, photographers, bridal shop owners and others have refused to serve same-sex couples. Government officials, citing laws that require most for-profit businesses to serve everyone, are seeking to enforce the nation’s public accom­mo­dation laws.

Such laws date back to the Civil Rights era and were designed to prevent businesses such as restaurants, hotels and shops from refusing services to African Americans, Asians, Jews or others, which was once a common practice in America. These days, many states and localities have separate laws extending similar protections to LGBT residents.

But some anti-gay fundamentalists who own for-profit businesses are resisting these laws, arguing that they have a religiously based objection to serving LGBT people.

Many of these cases have involved clearly secular businesses such as florists and bakers, but a controversy in Idaho has surfaced concerning two ministers who own a for-profit chapel where various types of marriage ceremonies are performed for a fee.

Don and Evelyn Knapp, owners of the Hitching Post in Coeur d’Alene, say they don’t want same-sex couples patronizing their business and have retained the Alliance Defending Freedom (ADF), a large Religious Right legal group, to represent them in court.

No house of worship can be compelled to perform a same-sex marriage, but the Knapps (at least until recently) did not claim to pastor a church. They were running a money-making concern that was registered as a for-profit limited liability company with the Idaho Secretary of State’s office. Their website had promised to provide a variety of wedding services in many traditions or secular civil ceremonies. (The material was scrubbed from the site prior to the lawsuit’s filing, and the Hitching Post now claims to be a religious non-profit.)

Local media has reported that no same-sex couple has even approached the chapel and asked to be married there, but other reports indicate that two couples were turned away. It may no longer be relevant: Officials in Coeur d’Alene say the Knapps have since reorganized their chapel as a religious non-profit, which would exempt them from the LGBT ordinance.

City officials say they can’t figure out why the Knapps have retained the ADF to sue.

“Their lawsuit was something of a surprise because we have had cordial conversations with them in the past, and they have never disclosed that they have recently become a religious corporation,” City Attorney Mike Gridley told the Coeur d’Alene Press.

There may be a simpler reason for the lawsuit: It helps the Religious Right raise money and motivate activists. The ADF has used the Knapp v. City of Coeur d’Alene case to promote the idea that religious conservatives are being persecuted in America. Several Religious Right websites have picked up the story, and claims are flying that heavy-handed government bureaucrats are trying to force a church to perform a same-sex ceremony.

(The controversy is not limited to Idaho. Some for-profit chapels in Las Vegas, including one that offers Elvis Presley-themed weddings, are refusing to serve same-sex couples, reported KLAS-TV.)

Americans United asserts that the ADF has ginned up the controversy because the group couldn’t find any actual examples of houses of worship being compelled to perform a same-sex marriage. Indeed, in the 10 years that the nation has had same-sex marriage – Massachusetts was the first state to authorize it in 2004 – no church has ever been sanctioned. 

Decisions about how to proceed are left to respective religious communities. Reporter Bill Sherman of the Tulsa World illustrated this well in an Oct. 8 story. Sherman contacted a number of religious leaders in Oklahoma and found exactly what one would expect: Some members of the clergy were looking forward to officiating at same-sex marriages, while others said they would never consider it. While some religious leaders indicated that the issue of marriage equality has been divisive in houses of worship, none expressed concern that the government was going to force them to do anything.

The ADF, Americans United points out, is pushing in court for a very broad policy of religiously based exemptions – and not just for houses of worship. The Religious Right legal outfit is representing several business owners who don’t want to deal with gays; the group even makes the argument that government officials, such as county clerks and registrars, can refuse to serve same-sex couples.

In North Carolina, a magistrate in Pasquotank County refused to marry a same-sex couple. The man said performing the ceremony would offend his religious beliefs.

Magistrates in North Carolina are state employees who handle certain administrative and low-level legal functions. For example, they collect fines for traffic violations and some minor misdemeanors. In some parts of the state, they preside over small-claims court. Performing civil marriages is also part of the job.

In response to the flap, the North Carolina Administrative Office of the Courts issued a memo reminding courts that they must administer all legal marriages. A handful of magistrates in the state resigned rather than comply.

But others seem to believe they have a right to cite religious freedom as an ex­cuse not to do certain aspects of their job, and a state legislator, Sen. Phil Ber­ger, says he plans to introduce legislation that will allow magistrates to re­fuse to officiate at same-sex weddings.

The ADF argues that government officials already have this right. The organization has sent letters to officials in a number of states asserting that local government officials don’t have to serve same-sex couples.

“The First Amendment protects the right to basic freedoms, including the freedom to live and work according to one’s conscience,” said Kellie Fiedorek, an ADF attorney. “These freedoms are guaranteed to every American, including those issuing marriage licenses.”

Attorneys at Americans United say the ADF is distorting the law. In fact, government agencies are required to serve everyone; courts have not granted government employees broadly based “conscience” rights to refuse service to citizens who may legally marry.

Last month, AU attorneys responded to the ADF’s misinformation. They sent a memo to officials in several states where marriage equality is the law, pointing out that government officials have no right to refuse service to anyone on religious grounds.

AU notes that the arguments currently being raised by the ADF and groups like it harken back to assertions made during the Jim Crow era, when some government officials in the South argued that they had religious objections to extending marriage rights to interracial couples.

That effort didn’t work. State bans on interracial marriage – whether secular or religiously based – were invalidated by the Supreme Court in a 1967 decision in the case Loving v. Virginia.

But that precedent won’t likely faze Religious Right legal groups. Legal observers say the courts should prepare for a slew of cases concerning such “refusal” claims. As these lawsuits progress, Americans United intends to be involved and will argue that the right to refuse service to people that is granted to houses of worship should not be extended to government officials and for-profit businesses.

Americans United Legal Director Ayesha N. Khan said the organization is interesting in hearing from people who have been denied services by government employees or commercial establishments on religious grounds. (Complaints can be forwarded to madison@au.org.)

“Government offices and commercial establishments must be open to all citizens,” Khan said. “The ADF and its allies are misleading people into thinking that the law says otherwise. It is important that Americans United set the record straight.”

Even as courts grapple with these issues, it’s important to remember the bigger picture: Marriage equality is not yet the law of the land, and the far right is determined to not only stop the spread but reverse the tide. They got a boost Nov. 6 when the 6th U.S. Circuit Court of Appeals became the first appeals court to uphold a same-sex marriage ban in DeBoer v. Snyder. With a split in the lower courts, the question may be more attractive to the Supreme Court.

If that doesn’t pan out, marriage equality opponents could pursue a constitutional amendment. With the House and Senate now in Republican hands, an amendment banning same-sex marriage may get some play, but it remains a longshot. 

It isn’t easy to amend the Constitution. An amendment would have to pass two-thirds of each chamber and receive approval from three-fourths of the states (38). Most analysts say it’s too steep of a climb.

But that doesn’t mean the Religious Right is out of options. The ballot box may remain its best hope. If a president who opposes marriage equality is elected in 2016, and one of the Supreme Court’s aging liberals retires and is replaced by a conservative, the balance on the court would quickly shift, with a five-justice anti-marriage equality bloc in place.

This fight, despite what some would have Americans believe, isn’t quite over yet.