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If gays marry, churches could suffer
May 26, 2006
By Douglas W. Kmiec, a professor of constitutional law at Pepperdine University School of Law

After an acrimonious session in which Sen. Russell Feingold (D-Wis.) stomped out and Committee Chairman Arlen Specter (R-Pa.) bid him "good riddance," the Senate Judiciary Committee approved sending the federal marriage amendment to the full Senate.

The Feingold-Specter tiff illustrates the intensity of feeling about adding to the text of the Constitution what the founders surely thought was obvious: "Marriage in the United States shall consist only of the union of a man and a woman." The need to reaffirm the self-evident was prompted by Massachusetts' judicial recognition of same-sex "marriage," which motivated more than a dozen states to overwhelmingly proclaim otherwise.
With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex "marriage" will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay "marriage" the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

For technical legal reasons, it is difficult to challenge a religious group's non-profit status in federal court, but state court is more open. There, judicial decisions approving same-sex marriage or even state laws barring discrimination can be used to pronounce any opposing moral or religious doctrine to be "contrary to public policy." So declared, it would be short work for a state attorney general's opinion to deny the tax-exempt status of charities and most orthodox Jewish, Christian and Islamic religious bodies. If enough state lawyers do this, expect the IRS to chime in.

Punishing religious organizations for their moral beliefs might be thought contrary to the protections of the Constitution. Unfortunately, the Boy Scouts have had little success defending these bedrock precepts. Penalizing the Scouts for observing their own handbook, say lower courts, merely avoids the immediate harm of discrimination, even as the bald-faced assertion that moral belief is a "harm" is anomalous.

For the moment, same-sex "marriage" is confined to a single state, but litigation is ongoing in 10 states from New York to California. Three years ago, the Supreme Court came close to endorsing gay and lesbian "marriage" when it declared that morality alone was no basis for lawmaking. The court is under new management and is acting more restrained. But the political lobbying and litigating are unrelenting, and the targeting of the Scouts reveals that same-sex success can come by indirection.

That churches can be made the collateral casualties of the same-sex "marriage" campaign is important to grasp. At a minimum it gives partial answer to the view of indifference that asks how gay "marriage" hurts anyone. When judges treat your religious community, its schools and its charities on par with the purveyors of racial hatred, it will no longer be necessary to ask. But then, it will also be too late.

Many share the view, as I do, that marriage is a moral reality incapable of redefinition by court edict. Others disagree. Sending the federal marriage amendment to the states allows for an honest and civil debate, which is far better than back-door vengeance against moral dissenters--or is it a moral majority?

By Douglas W. Kmiec, a professor of constitutional law at Pepperdine University School of Law.