By Jacqueline L. Salmon
Washington Post Staff Writer
Friday, April 10, 2009
Faith organizations and individuals who view homosexuality as sinful and refuse to provide services to gay people are losing a growing number of legal battles that they say are costing them their religious freedom.
The lawsuits have resulted from states and communities that have banned discrimination based on sexual orientation. Those laws have created a clash between the right to be free from discrimination and the right to freedom of religion, religious groups said, with faith losing. They point to what they say are ominous recent examples:
-- A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.
-- A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.
-- Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.
-- A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.
"It really is all about religious liberty for us," said Scott Hoffman, chief administrative officer of a New Jersey Methodist group, the Ocean Grove Camp Meeting Association, which lost a property tax exemption after it declined to allow its beachside pavilion to be used for a same-sex union ceremony. "The protection to not be forced to do something that is against deeply held religious principles."
But gay groups and liberal legal scholars say they are prevailing because an individual's religious views about homosexuality cannot be used to violate gays' right to equal treatment under the law.
"We are not required to pay the price for other people's religious views about us," said Jennifer Pizer, director of the Marriage Project for Lambda Legal, a gay rights legal advocacy group.
Twelve states now offer some form of same-sex marriage or same-sex partner recognition. Twenty states -- including Maryland -- and more than 180 cities and counties, including the District, ban discrimination against gays, according to the Human Rights Campaign, a gay rights group. Virginia bans it against state employees.
These laws generally offer some type of exemption to religious entities when hiring employees. But some groups are working to expand that exemption to include commercial businesses to protect owners and their employees when exercising their religious views.
Gay rights groups said they do not object to making faith groups' religious jobs exempt from the discrimination laws but that offering services to the public is different.
"In their role as a participant in the marketplace, they are being required to do that in a non-discriminatory way," said Brian Moulton, Human Rights Campaign senior counsel.
Battles are increasingly including private businesses. Last August, the California Supreme Court ruled in favor of Guadalupe Benitez, who is a lesbian, when she sued the North Coast Women's Care Medical Group after doctors said their religious beliefs prevented them from artificially inseminating her.
"We were devastated," said Benitez, 37, who has been with partner Joanne Clark for almost two decades. Sexual orientation "should never have been an issue," she said. "The issue was that I had a medical condition."
The court ruled that North Coast Women's Care did not have a free-speech right or a religious exemption from the state antidiscrimination law.
Sometimes, organizations that don't wish to serve gays give in rather than go to court.
The online dating site eHarmony agreed to provide gay and lesbian matchmaking services to settle a complaint by a gay New Jersey man accusing it of discrimination. The new site, CompatiblePartners.net, started Tuesday.
The site eHarmony, founded by evangelical psychologist Neil Clark Warren, does not provide a same-sex option. Warren said his research into successful relationships did not include same-sex couples.
Company attorneys said that it settled because of the unpredictable nature of litigation and that New Jersey's attorney general did not find that eHarmony had violated the state's anti-discrimination law.
"People seem to say that if you enter the world of commerce, you lose all your First Amendment rights" to free exercise of religion, said Jordan Lorence, senior counsel at the Alliance Defense Fund, a Christian legal organization that has represented several businesses. "They . . . have become nothing more than vending machines, and the government can dictate the conditions under which they dispense their goods and services."
Even when groups opposing homosexuality have prevailed in court, they have gone on to face other setbacks. The Boy Scouts of America won a lawsuit in 2000 because it did not allow openly gay Scouts or Scout leaders. Since then, some private charities have refused to support the Scouts, and some local governments have yanked free use of facilities and other benefits. In Philadelphia, the city is demanding that the Scouts pay $200,000 in annual rent for a building that they had been using rent-free. The dispute is in court.
Some scholars also point to Bob Jones University, which lost its tax exemption over a ban on interracial dating and marriage among students, even though it claimed that those beliefs were religiously grounded. Some legal analysts suggest that religious groups that do not support gay rights might lose their tax exemptions because of their politically unpopular views.
Jonathan Turley, a law professor at George Washington University who supports same-sex marriage, said the Bob Jones ruling "puts us on a slippery slope that inevitably takes us to the point where we punish religious groups because of their religious views."
Both sides predict more litigation as gay rights bump up against strong religious beliefs.
Marc Stern, general counsel for American Jewish Congress, said: "When you have a change that is as dramatic as has happened in the last 10 to 15 years with regards to attitudes toward homosexuality, it's inevitable it's going to reverberate in dozens of places in the law that you're never going to be able to foresee."