Gay marriage as a religious right: reframing the legal debate over gay marriage in the United States *.

The definition of marriage as a union between a man and a woman has origins in sectarian religious views of marriage. Nevertheless, proponents of gay marriage have not yet fully explored the religious discrimination inherent in public policies that embrace this sectarian definition of marriage. Instead, advocates of gay marriage have largely relied on "equal rights" arguments or claims based on substantive due process and the equal protection clause of the 14th Amendment to make the case that gay marriage should be legalized. In an effort to address the religious underpinnings of arguments against gay marriage, this article will consider the implications of using a "religious rights" as opposed to an "equal rights" framework to analyze the debate over gay marriage. This piece will examine pertinent U.S. legal cases related to religious freedom, particularly Establishment Clause jurisprudence, and their applicability to the argument that gay marriage can be framed as a religious right. It also will consider the limitations of framing gay marriage as a religious right.

doi:10.1057/palgrave.polity.2300103;

Keywords gay marriage; religious rights; religious freedom; Establishment Clause

Introduction

Proponents of gay marriage in the United States have framed gay marriage as an "equal rights" issue emphasizing same-sex couples' lack of access to the fundamental rights and legal securities associated with marriage. Despite the moral appeal of claims grounded in equality, a religious rights framework provides an alternative strategy that may offer new perspectives in the legal debate over gay marriage in the United States. Specifically, gay marriage can be considered a fundamental religious right derived from First Amendment guarantees of religious liberty and non-establishment of religion. We do not intend to undermine either the legal or moral arguments for equality for same-sex couples. Rather, we seek to offer an alternative and complementary legal strategy to advance claims for marriage rights for same-sex couples.

Because religious actors have been a driving force behind opposition to gay marriage, it seems counter-intuitive to argue that gay marriage can be considered a religious right. However, religious actors in the United States do not speak with one voice. The Unitarian Universalist Association (UUA) has taken a strong public stand in favor of same-sex marriage as a civil right. Although the UUA has a congregational organization that allows for divergent practices among member congregations, many Unitarian Universalist congregations solemnize same-sex relationships, and some UU ministers have been performing same-sex ceremonies of union since the mid-1970s. (1) Interestingly, seven of the fourteen plaintiffs in Goodridge v. Massachusetts Department of Public Health (2003) (2) were Unitarian Universalists. (3) Similarly, some Quaker congregations have been performing wedding ceremonies for same-sex couples for almost twenty years. (4) The Religious Society of Friends (Quakers) in the United States has not taken a formal position on same-sex marriage, (5) but regional and local Quaker meetings have made statements in support of legal recognition for same-sex marriages. (6) In July 2005, the general synod of the United Church of Christ passed a resolution affirming equal marriage rights for same-sex couples. (7) The Metropolitan Community Church has blessed same-sex unions for several decades and has been at the forefront of the movement to legalize same-sex marriages.

In addition to support for same-sex marriage among mainline Christian denominations, major Jewish movements now support some form of marriage equality for same-sex couples. The Central Conference of American Rabbis, the professional association of rabbis associated with the Reform Movement within Judaism, voted in 2000 to support rabbis who perform same-sex commitment ceremonies. The Reconstructionist movement also supports the legalization of same-sex civil marriage. (8) In December 2006, the central legal body of Conservative Judaism voted to allow local congregations to decide to perform same-sex commitment ceremonies as well as to ordain gay rabbis. This vote left only Orthodox Jewish groups opposed to gay marriage. (9)