One of the reasons that social conservatives oppose gay marriage is the belief that if it is legalized in a state, private institutions, such as religious employers and religious schools, will be forced to treat gay unions the same as heterosexual marriages. This opposition is based on two unstated assumptions that are mistaken: first, they erroneously believe that if they can just block gay marriage, religious businesses and schools will not be forced by government officials to treat gay couples like heterosexual married couples. Second, they sometimes mistakenly fear that if gay marriage is legalized, churches themselves will somehow be forced to perform gay marriages
The first assumption is just wishful thinking: blocking gay marriage solves nothing, because in liberal areas, bossy civil-rights bureaucrats and liberal judges (many state judiciaries, and virtually all civil-rights bureaucrats, are left-leaning) will force religious businesses and universities to treat gay couples as if they were married couples, even if gay couples cannot formally get married in that state. Multiple court rulings and administrative rulings show that this is so, by effectively ordering religious businesses and schools to treat unmarried gay couples as if they were married, under existing state laws and municipal ordinances banning private-sector discrimination against gay customers and students.
On the other hand, legalizing gay marriage doesn’t mean churches themselves have to perform same-sex marriages. The courts are more protective of churches than they are of religious businesses. Churches and religious schools do not have to hire gays as ministers, church spokesmen, or teachers of religion, since those positions are constitutionally exempted from civil-rights and anti-discrimination laws by the Supreme Court's unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). The courts distinguish between discrimination against gay customers -- which they let the government prohibit broadly even when it burdens religious schools and businesses -- and discrimination in hiring of clergy, those who speak for the church, and in a church's own religious rituals and internal deliberations -- which are protected by the First Amendment, even when government officials attempt to ban it as "discriminatory."
So whether or not a state performs gay marriages or recognizes them in its marriage laws has little effect on religious liberty.
I have been one of the most outspoken critics of court rulings restricting the freedom of religious businesses and schools; and I have repeatedly defended the First Amendment rights of social conservatives to express their views about homosexuality (for example, I have criticized politicians’ harassment of Chick-fil-A over its CEO’s opposition to same-sex marriage, which was constitutionally protected speech, see here, here, here, and here). And I can tell you that banning gay marriage does not solve this problem, it just causes other problems, such as creating perverse incentives for gays (and occasionally harming heterosexuals).
Blocking gay marriage unfairly prevents committed monogamous gay couples in long-term relationships from accessing useful government benefits limited to legal spouses (while also shielding them, ironically enough, from “marriage penalties” in the tax code and welfare system). It also sometimes results in gay couples in short-term relationships unfairly obtaining certain government benefits available only to those heterosexuals who are married (and thus not in short-term, non-legally-binding relationships), and increases the risk that private institutions will be forced to treat gay couples the same as married heterosexuals even if they are not in a long-term relationship akin to marriage. Banning gay marriage thus reduces incentives for long-term monogamy among gays, even though monogamy is as desirable among gays as among heterosexuals (since it can reduce the incidence of AIDS, and promote family stability, such as households in which gay couples are raising children).
Banning gay marriage generally doesn’t protect those who have religious objections to gay marriage from being forced to treat gay couples as if they were married. In 2001, Yeshiva University was ordered to allow same-sex couples in its married dormitory, pursuant to New York City’s municipal anti-discrimination law, which bans sexual orientation discrimination by private institutions. Since gay couples could not marry at the time (the New York Court of Appeals later upheld the state’s ban on gay marriage, which was later legalized by the state legislature), the courts held that it was discriminatory to require gays to be married to live in married-student housing (never mind that heterosexuals had to be married to live there). The New York Court of Appeals unanimously ruled that the gay students suing Yeshiva had stated a “disparate impact” discrimination claim against it, because it was axiomatic that requiring something that gays could not legally satisfy (getting married) was disproportionately burdensome to them. The net result of this ruling was to pressure private universities to treat gay couples the same as married straight couples even when their relationships were not as long-lasting as marriages typically are.
If gay marriage had been legal at the time, Yeshiva could probably have limited its married student housing to just those gays who had chosen to enter into the solemn commitment of marriage, rather than all gay couples, since gays could have gotten married in order to seek such housing, and requiring marriage for eligibility would not have an obvious disparate impact. But instead, due to gay marriage being illegal, it got stuck with a ruling that effectively forced it to treat all gay couples as being akin to married heterosexual couples, rather than just gay couples who are married in all but name. Gay marriage being illegal broadened the assault on its religious freedom, rather than preventing it.
In New Mexico, a religious wedding photographer was ordered to pay $6,000 after she refused to film a gay couple’s commitment ceremony, even though the state did not recognize same-sex marriages or civil unions at the time. The state appeals court upheld the penalty, ruling that the photographer had violated New Mexico’s statute banning sexual orientation discrimination in public accommodations, which defines many private businesses as public accommodations. (I previously explained why this ruling violated First Amendment free speech rights as well as state religious-freedom guarantees.)
There are isolated cases where a state’s lack of formal legal recognition for both gay marriage and civil unions helped a defendant avoid a lawsuit. A country club was held not to have violated California’s Unruh Act banning private-sector sexual orientation discrimination against customers when it did not treat a lesbian couple as if they were married, at a time when California law did not yet recognize marriage or civil unions. By contrast, it was held to have violated their rights after California recognized civil unions (but not gay marriages) when it refused later on to treat their legally-recognized civil union the same as a heterosexual marriage, since the state supreme court considered their civil union close enough to a marriage that they had to be treated the same (even though a civil union was not precisely the same as a marriage).
Unfortunately for social conservatives, while half the public opposes gay marriage, a substantial majority favors either gay marriage or civil unions, and even if social conservatives manage to stop gay marriage, they will not likely be able to prevent civil unions of some sort. States and municipalities increasing recognize civil unions if not marriages. So the few cases like this one furnish little or no reason to oppose same-sex marriage. (And they are partly offset by court rulings like the one involving Yeshiva University that make disparate impact law a greater threat to religious freedom in states that deny legal recognition to same-sex unions than in those that permit it.)
Banning federal recognition of gay marriage through laws like the Defense of Marriage Act (DOMA) results in what the Supreme Court once referred to as “the indiscriminate imposition of inequalities,” resulting in a strange state of affairs that discriminates against both gays and heterosexuals in different ways. The lack of government recognition for gay marriage means that the government cannot give committed, monogamous gay couples certain benefits that are specifically reserved by federal law for spouses, even when the gay partners are emotionally inseparable (like the right to take your European-born spouse with you when you move back to America from an overseas job, which is possible through visas and green cards available only to legal spouses under the immigration laws). But it also makes it easier for gay partners in short-term relationships that do not reflect any marital-like commitment to access government benefits that are not specifically reserved by federal law for spouses, but that the government only makes available to married heterosexuals, not unmarried heterosexuals. The Obama administration recently awarded various household benefits to gay partners of federal employees. These benefits are not available to unmarried heterosexual couples, because, the administration says, heterosexuals can get married to access them. But they are available to unmarried gay partners, because they can’t enter into federally recognized marriages (most states don’t recognize gay marriage, and DOMA prohibits the federal government from recognizing gay marriages even if they are legal under state law). If gay partners could get legally married, the benefits could more easily be limited to those that deserve them most, by virtue of their demonstrated marital commitment.
In the absence of gay marriage, left-leaning judges pressure states to give benefits to unmarried gay couples who have not made any marital-like commitment. In Diaz v. Brewer (2011), the Ninth Circuit Court of Appeals approved a lawsuit against Arizona, which has a state constitutional amendment banning gay marriage, after its state universities cut off certain benefits to gay and straight domestic partners, which previously had been available to both spouses and domestic partners. The Ninth Circuit held that Arizona’s action had a disparate impact on gays, because they, unlike heterosexuals, could not marry. (As Ed Whelan notes, this constitutional ruling against Arizona was incorrect, since the Constitution, unlike many civil-rights statutes, does not forbid “disparate impact,” as the Supreme Court has made clear in Personnel Administrator of Massachusetts v. Feeney (1979) and Washington v. Davis (1976).)
Similarly, even respected, non-ideological judges have cited the fact that gays cannot marry to issue court rulings permitting local governments to discriminate against heterosexuals in government benefits, like refusing to allow unmarried heterosexual domestic partners to receive benefits available to unmarried gay domestic partners, even though some of those unmarried gay partners would not have gotten married even if they had the right to do so. Judge Posner’s decision for a unanimous federal appeals court in Irizarry v. Board of Education of Chicago (2001) is the classic example.
Banning legal recognition of gay marriages not only deprives gay couples of important intangible and non-monetary benefits that often cost taxpayers nothing (like the right to have your spouse immigrate and be with you when you return to the U.S. from overseas), but also deprives taxpayers of the increased revenue that would result from recognizing gay marriage. Federally recognizing gay marriages — that is, repealing the Defense of Marriage Act (DOMA) – would bring in at least $1 billion in additional tax revenue, partly because couples comprised of two wage earners are taxed on their social security benefits at lower income levels, and pay more in taxes over their lifetimes, and receive fewer means-tested benefits, if they are married than if they are unmarried, due to marriage penalties contained in federal tax law and means-tested government benefit programs. The interaction of DOMA with California’s community-property laws costs taxpayers hundreds of millions of dollars.
State constitutional amendments to ban gay marriage can backfire and harm heterosexuals. Virginia’s anti-gay-marriage, state constitutional amendment, which forbids recognizing any gay union, was interpreted by a trial judge to bar cutting off alimony to a cohabiting ex-wife, because the ex-wife was a lesbian who chose to cohabit with a woman rather than a man. The judge ruled that the wife’s cohabitation could not be recognized as a legal union for purposes of whether she had entered into a new union that eliminated the need for spousal support. (Never mind that her new partner made her less in need of support.) The judge’s ruling was only overturned by the appeals court on other grounds, without resolving whether the state's Marshall-Newman Amendment would, as a general rule, affect alimony to ex-wives in lesbian relationships.
If same-sex marriages were recognized by federal law, gays would then have an incentive to lobby to get rid of existing marriage penalties in the tax code and government-benefit laws. Perhaps due to their history of being demonized and discriminated against, gays participate in the political process to a degree that outstrips their tiny percentage of the general population, giving them a measure of “political clout” (contrary to conventional wisdom, gays may account for as little as 2 percent of the population, notes a senior editor at The Atlantic; but they contribute many millions of dollars annually to the political process). By contrast, married heterosexuals are less likely to be involved in lobbying lawmakers when they have small children, which keep them enormously busy. That, and the dwindling percentage of the population that is married compared to 40 years ago, has made it increasingly possible for liberal politicians (who draw their support mostly from the unmarried, such as single mothers who often rely on government assistance) to sock married people with massive marriage penalties in the tax code (like Obamacare’s additional tax on investment income starting in 2013, which affects a married couple who each have only $125,000 in income, but affect unmarried couples only if each has an income of $200,000. Obamacare also discriminates against lower-income married couples in its healthcare subsidies. (Gay couples sometimes have children, too, but they are statistically less likely to have children, and to have fewer children even when they have kids; it is harder to have a large family when you have to adopt or use a surrogate or sperm donor.) Letting gays, who are more often liberal than conservative (although not as much so as many minority groups), get married may make it harder for liberal politicians to use married couples — who are now mostly Republicans — as a financial cash register for the welfare state.
As Rep. Thomas Petri (R-WI) has pointed out, “The decline in marriage and the rise in the number of children born to unmarried mothers are concentrated among lower-income families. One reason is that lower-income couples will often lose money if they get married. Many federal benefits such as food stamps and the earned income tax credit phase out as income rises. Under federal law, if two individuals earning the minimum wage choose to marry, combining their incomes results in the loss of some $7,000 in federal benefits. The result: Fewer marriages, more births outside marriage and reduced prospects for rising into the middle class.”
If people want to protect marriage and the family, they should focus on eliminating these marriage penalties, rather than wasting time trying to ban gay marriages, or pushing measures like the Maryland Same-Sex Marriage Referendum. Indeed, they should be happy to enlist gay people as new recruits to the institution of marriage. The more broadly that traditional values and bourgeois virtues like marriage and monogamy spread throughout the population — including the gay community — the better. I previously rebutted some common arguments against same-sex marriage here.
The way to protect religious freedom is to write broader religious exemptions into state anti-discrimination laws, and to vote against legislation, like the proposed Employment Non-Discrimination Act, that provides inadequate protection for free speech and religious freedom.
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