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ONLINE EXCLUSIVE
New England's Gay Marriage Compromise
Could A Deal In New Hampshire Help End The Debate, Or Is It Just A Marriage Of Convenience?
New England, where conservatives are so marginalized they don't have a single Republican vote in the House, might seem an unlikely place for gay rights advocates and Christian conservatives to hammer out a détente.
But as a wave of Northeast states has legalized same-sex marriage in recent months, they've carved out a range of legal protections for religious organizations that have proved marginally acceptable to both sides -- no small feat in a debate that usually tends towards maximalism. Might these so-called "conscience exemptions" push gay-marriage legislation across the finish line in more purple areas of the country? Or will the protections turn out to be a marriage of convenience between conservatives and gay rights advocates that won't stick outside leafy, liberal New England?
Six states now recognize gay marriages, but in four of them -- New Hampshire, Maine, Vermont and Connecticut -- clergy who choose not to officiate same-sex ceremonies are legally protected from charges of discrimination. The First Amendment likely covers them anyway, legal scholars say, but writing explicit protections into the law has helped defuse criticism.
Some states' laws go further. Vermont offers broad protections for religious organizations to deny "services, accommodations, advantages, facilities, goods or privileges... related to the solemnization of a marriage or celebration of a marriage." New Hampshire adds that churches may refuse services related to the "promotion of marriage."
When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.
In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added.
Americans have inched toward acceptance of gay marriage in the past decade, but a May Gallup poll found that 57 percent of Americans remain opposed. Support is often higher in blue states, however, and some Christian conservatives are falling back on conscience exemptions as their last, best hope to keep gays at bay when public opinion has swung against them.
"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation.
The gay-marriage lobby is making political calculations of its own. Some advocates view exemptions as temporarily convenient and don't think they'll need to tolerate them forever. Just as increasing public support for gay marriage in recent years has made civil unions unsatisfactory to the movement, it's hard to imagine that if same-sex marriage were to gain overwhelming support in New England some gay rights activists wouldn't lobby to remove state-sanctioned religious discrimination.
Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples -- say, a wedding photographer whose religious beliefs prevent him from shooting a same-sex wedding.
In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."
Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there.
Compromising on exemptions won't win over every Christian conservative in the country -- and it doesn't need to, argued Laycock, an expert on religious liberty. Many gay-marriage opponents are worried that they will somehow be made complicit in same-sex unions, he argued. Neutralizing that concern could be the key to tipping the scales in some states.
"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."
That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."
"No amount of religious exemptions would be acceptable to justify a redefinition of marriage," said Bruce Hausknecht, a judicial analyst for Focus on the Family Action. "That's non-negotiable."
Still, advocates have good reason to make concessions to the religious right -- for now -- as they look ahead to legislative battles in other states. In 2008, after a wedding photographer refused to shoot a same-sex commitment ceremony in New Mexico, the company was hit with a $6,600 fine under the state's nondiscrimination laws. Christian conservatives cried religious oppression in response to this and other incidents.
"They want to bring the issue into my life," said an actor in a television spot released by the National Organization for Marriage in April. "My freedom will be taken away," another added. "I am part of a New Jersey church group punished by the government because we can't support same-sex marriage," a third actor chimed in.
"Every time you get one of these cases where some religious institution is penalized for refusing to participate in a ceremony, you create a new martyr and a new talking point for the talking heads on the religious right," Laycock said. "Exemptions will avoid much of that."
But gay rights advocates know they're playing a high-stakes game. Chris Edelson, state legislative director for the Human Rights Campaign, supports exemptions and believes that most of them do not carve out any new protections for religious groups that don't already exist under the law and in the Constitution. But he admitted that the New Hampshire bill is open to interpretation.
"Any time you introduce vague language, there is an element of danger and risk," Edelson said. "It could give people ideas for other arguments."
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