Should religious organizations that receive public subsidies and take special tax breaks be allowed to discriminate against couples of the same gender? Yes, declare 39 religious leaders in an open letter (PDF) to “all Americans” released last week.
Released on Religious Freedom Day (the same day as Martin Luther King, Jr. Day), the letter claims that including same-sex couples in the definition of marriage usurps religious liberty. Essentially, the letter serves as an appeal against legalizing same-sex marriage in more states, citing a few examples of religious organizations that lost public subsidies when they defended their stances against homosexuality. Yet, each example provided occurred in states where same-sex marriage is currently illegal.
“One of these consequences—the interference with the religious freedom of those who continue to affirm the true definition of ‘marriage’—warrants special attention within our faith communities and throughout society as a whole,” the religious leaders wrote. “For this reason, we come together with one voice in this letter.”
Among those who signed the letter are the Rev. Leith Anderson of the National Association of Evangelicals, several leaders in the Southern Baptist Convention, the presiding bishop of the Mormon church, several Catholic bishops, and the national commander of the Salvation Army.
The letter writers assert that religious leaders will be victim to civil or criminal charges if they do not officiate same-sex marriages:
While we cannot rule out this possibility entirely, we believe that the First Amendment creates a very high bar to such attempts. Instead, we believe the most urgent peril is this: forcing or pressuring both individuals and religious organizations—throughout their operations, well beyond religious ceremonies—to treat same-sex sexual conduct as the moral equivalent of marital sexual conduct.
By a single stroke, every law where rights depend on marital status—such as employment discrimination, employment benefits, adoption, education, healthcare, elder care, housing, property, and taxation—will change so that same-sex sexual relationships must be treated as if they were marriage. That requirement, in turn, will apply to religious people and groups in the ordinary course of their many private or public occupations and ministries—including running schools, hospitals, nursing homes and other housing facilities, providing adoption and counseling services, and many others.
Ocean Grove, New Jersey
The religious leaders cite an example of a New Jersey church they say lost its tax-exempt status for not allowing a lesbian couple to rent its pavilion to have a civil union ceremony.
“[T]he state cancelled the tax-exempt status of a Methodist-run boardwalk pavilion used for religious services because the religious organization would not host a same-sex ‘wedding’ there,” states the letter.
What the letter doesn’t state is that the pavilion, owned by the Ocean Grove Camp Meeting Association, was receiving tax breaks for almost a century.
According to a New York Times clipping from 1908, the OGCMA land, on which the pavilion sits, was deemed tax-free.
“It was shown to the board by the association’s legal representative, Samuel A. Patterson, that the valuable strip of land, with its boardwalk, had been dedicated years ago by the association as a public highway, and not therefore subject to taxation,” the Times reported.
When the New Jersey Division on Civil Rights heard the complaint filed by the rejected couple in 2007, it found four reasons why the property was considered a public site, not a religious one, as the OGCMA argued.
Pavilion use was not limited to members of the church, and in fact couples of any faith — even non-Christian ones — could rent the pavilion. The church only used the property sporadically over the summer months and therefore could not be viewed as a house or worship. When not in use, the pavilion was available to anyone who walked by to sit inside or use as shelter from the weather.
The OGCMA even admitted that the pavilion was public. When the association applied for additional tax breaks in 1989 through the state’s Green Acres program, the OGCMA itself said the property was “open to all persons on an equal basis” and “was not restricted to religious uses.”
The case eventually appeared before an administrative law judge who ruled on Jan. 12 of this year that the space was public.
Judge Solomon A. Metzger noted (PDF) that the OGCMA had advertised the pavilion on its website without any indication of its religious nature or any restrictions.
But it was the Green Acres tax exemption that the judge said was important. “Respondent accepted a particular form of tax exemption that required it to keep the Pavilion open to the public,” Metzger wrote in his decision.
The church wasn’t forced to marry anyone, but it could not discriminate on the one small part of its property that benefited from taxpayer subsidy. The church owns the land under most of Ocean Grove.
San Francisco Salvation Army
In the letter, the religious leaders also cite a case in San Francisco.
“San Francisco dropped its $3.5 million in social service contracts with the Salvation Army because it refused to recognize same-sex ‘domestic partnerships’ in its employee benefits policies,” the letter states.
That complaint stems from a 1998 scuffle between the Salvation Army and the religious right. When San Francisco and a number of other large cities instituted policies that required entities doing business with the city to offer their employees domestic partnership benefits, the Salvation Army found a compromise: It would do so for its employees but not its officers.
“There exists a clear difference in how we deal with homosexuality as an employer and as a church in ministering to our followers,” the group said at the time. “We understand the need for our health care benefits to respond to the wide variety of personal interdependent relationships that we see among employee households today.”
Due to the rescinding of that policy, the Salvation Army decided not to contract with the city of San Francisco going forward.
Portland, Maine, and Catholic Charities
The letter also cites an example from Maine.
“Similarly, Portland, Maine, required Catholic Charities to extend spousal employee benefits to same-sex ‘domestic partners’ as a condition of receiving city housing and community development funds,” the religious leaders wrote.
Portland adopted a policy in 2001 that contractors with the city needed to offer domestic partner benefits.
In 2001, Catholic Charities with the help of the Center for Marriage Law filed a lawsuit in district court. The court said that since Catholic Charities’ benefits plan was covered under federal law, it did not have to comply with Portland’s domestic partner law. But the court also said that other fringe benefits, such as bereavement leave and the Employee Assistance Program, were not covered by federal law and were subject to Portland’s ordinance.
Nancy D. Polikoff writing for the Washington Post noted that it was Catholic Charities that decided to reject the contract with the city of Portland for $85,000 and that, for all intents and purposes, Catholic Charities won that lawsuit.
“It’s wrong that private employers in states recognizing same-sex couples are allowed to discriminate in their employee benefits programs,” wrote Polikoff. “But that’s a problem with the federal law, and it has nothing to do with religion.”
Polikoff was discussing the successful 2009 push to grant marriage rights for same-sex couples in the District of Columbia and the threat Catholics Charities made to end its contracts with the city if it passed. It passed, and Catholic Charities announced it would not longer conduct public adoptions and foster care.
D.C. At-Large City Council member David Catania said at the time, “If they find living under our laws so oppressive that they can no longer take city resources, the city will have to find an alternative partner to step in to fill the shoes.”