Each of the four bills (in Vermont, Connecticut, Maine, and New Hampshire) enacted this year to redefine marriage include some kind of “religious exemption.” This is significant because it represents a grudging admission that redefining marriage creates conflicts between the new marriage policy and the ability of religious groups and individuals to act on their conviction that marriage is the union of a man and a woman. How much protection do these bills provide?
All specify that clergy will not have to solemnize same-sex marriages. Vermont, Connecticut, and New Hampshire exempt fraternal benefit societies from having to provide insurance based on a same-sex marriage. The bills in these three states also contain language that prevents religious organizations and associated nonprofits from being, in the language of the Vermont bill, “required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage or celebration of a marriage” (New Hampshire’s bill adds “or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of his or her religious beliefs and faith”). The bills in Maine and New Hampshire specify that the government may not, in the language of the Maine bill, “compel, prevent or interfere in any way with any religious institution’s religious doctrine, policy, teaching or solemnization of marriage.” The Connecticut bills says the marriage law cannot be “deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.”
Unless these provisions are interpreted very expansively, they seem to be very thin gruel indeed. It is certainly arguable that state and federal constitutional provisions would already have kept clergy from being forced to solemnize same-sex marriages and would prevent government from dictating doctrines, policies, and practices of churches.
What is not protected? Among other things, (1) anything after the marriage is solemnized and celebrated, (2) the rights of individuals acting on their religious beliefs unless the individual is clergy or a church employee, (3) nondenominational religious schools or organizations, and (4) parents’ ability to exempt their children from public-school curriculum promoting same-sex marriage.