When Religion Disrupts Same-Sex Marriage Laws

It now seems as if only New Hampshire Governor John Lynch stands in the way of his state legislature's push to legalize same-sex marriage. In a statement released on Thursday, Lynch explained that HB 436, which passed last week, lacks adequate protection for religious dissenters to whom gay marriage could constitute an unfair attack on conscience or belief.

New Hampshire lawmakers must now incorporate the governor's wishes into a revised bill or face an unfortunate yet assured veto. As expected, gay rights organizations have vocalized their dissatisfaction with the deliberate delay. Lynch, however, sees his ultimatum as a warranted defense of fairness. "This new language will provide the strongest and clearest protections for religious institutions and associations, and for the individuals working with such institutions," he said in his statement. "It will make clear that they cannot be forced to act in ways that violate their deeply held religious principles."

Yet, it is that question -- whether same-sex marriage disadvantages religious groups -- that has pundits, lawyers and lawmakers scratching their heads.

Already, regardless of state, clergy cannot be forced to marry gay couples; that is, after all, the pretext of the First Amendment's guarantee of religious freedom. And for any related ground otherwise unprotected by the Constitution, an assortment of pre-existing laws and court rulings also address religious discrimination. These measures, combined, seem to render a number of additional religious protections in same-sex marriage bills redundant and ineffective.

But that is the true import of the "religious exception," in New Hampshire and elsewhere. In the three states that have also attached similar amendments to their hard-fought same-sex marriage or civil union provisions, clever wording has shielded a number of supportive lawmakers -- including Lynch -- from the wrath of moderate or conservative constituencies that would normally disapprove of so many "yes" votes.

However, Lynch and company would be wise to tread carefully. Although the governor's proposed revisions come at a bargain price for same-sex marriage advocates, ambiguous or symbolic amendments concerning religious freedoms have the unparalleled capacity to backfire. Blogging at the Volokh Conspiracy, Dale Carpenter presents a couple of reasons why:

"I'd want to hear from experts in antidiscrimination law about the possible effects ... Would its application to "any individual" include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples?... How do we know when a belief is "religious" rather than a deeply [held] moral or philosophical one? How do we know when a religious belief is "sincere" as a opposed to pretextual?"

Taken together, Carpenter's arguments illuminate an important point: There exists a veritable difference between distaste for same-sex marriage and dislike of same-sex couples. Although anti-discrimination laws that undermine religious groups are, in effect, also de facto forms of discrimination, overcompensating in that regard cannot function as a legal cover for sexuality-based prejudice. When that occurs, same-sex couples lose more social and political ground than they gain.

This is not to suggest that New Hampshire's recent recalcitrance is motivated by ill will. It is likely that Gov. Lynch does not intend to shield his state's most conservative groups or figures from charges of discrimination. Yet appeasement for the sake of expedience commonly produces unintended consequences. If this is indeed the case in New Hampshire, it is more than a stubborn governor standing in the way of social change, and it is more than one group of historically disadvantaged people who stand to suffer because of it.