Professor Geoffrey Stone on Civil Unions and Religious Freedom

 Sunday April 26, 2009  | Civil Rights

Illinois will soon begin to discuss the Religious Freedom Protection and Civil Union Act, a bill with the dual purpose of providing legal recognition for same-sex couples and permitting religious organizations to choose not to solemnize or officiate civil union ceremonies. The bill would also recognize marriages and other legal relationships between members of the same-sex performed in other jurisdictions as civil unions. Illinois currently offers no recognition for gay and lesbian couples.

Professor Geoffrey Stone of the University of Chicago Law School, like 60% of Americans according to recent polls, supports the legislation and wrote a very interesting opinion piece in the Chicago Tribune. He opines:

There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Hispanics, Asians, Jews, Catholics and gays, all of whom have been the victims of cruel discrimination.

The rights for each of these groups have come incrementally. For instance, women won suffrage in 1920, employment nondiscrimination in 1964, and school nondiscrimination in 1972. Professor Stone believes the incremental approach to legalized same-sex marriage is appropriate as well, saying, "it is a reasonable compromise at this time in our history."

I disagree. 'Reasonable compromises' are what have led many people to believe that the fight for women's equality ended in 1970 with the Equal Pay Act when, in reality, women today are still paid 15-40 percent less than their male colleagues. By taking an incremental approach and settling for civil unions, we run the risk of fostering a perception that the problem has been fixed by a separate-but-equal institution. So why not go straight for full marriage equality? Professor Stone points to fears of losing religious liberty:

The most obvious tension arises out of the fact that some religious people believe same-sex relationships are inherently sinful and immoral. They therefore insist that the state should not legitimate such relationships. The problem, though, is that in a society that values the separation of church and state, religious doctrine cannot be the source of our secular law. The framers of our Constitution certainly embraced this principle. It is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them.

I agree with Professor Stone on this point and I believe he has articulated it beautifully. However, we diverge in opinion on the appropriateness of the "Religious Freedom Protection" part of the Act. While he regards the language as "a respectful and very substantial acknowledgment of legitimate religious liberty interests," I see it as a merely symbolic and unnecessary inclusion simply for political appeasement.

The case that has spawned the fervor over religious liberty took place in New Jersey, where a religious organization refused to allow a lesbian couple to use a pavilion it owned. As a result of their decision, the New Jersey Department of Environmental Protection took away a tax break given to the organization for opening the pavilion to public use. This was a case involving not religious freedom, but a bland and straightforward taxation principle: you may not receive a public accommodation tax exemption on a location that is not actually accommodating the public.

Illinois FlagI do not believe that the Illinois provision would have affected this outcome. Section 15 provides only that the law does not "interfere with or regulate the religious practice of any religious body" and that an organization "is free to choose whether or not to solemnize or officiate a civil union." However, this is already the state of the law in all 50 jurisdictions; no religious institution is forced to recognize any marriage it does not want to. Many Catholic churches, for instance, do not perform marriage ceremonies for divorcees, while Orthodox Jewish temples may refuse to join a jew and a gentile. No provision of law could be read to force religious organizations to conduct same-sex civil union ceremonies.

What an organization cannot do, however — and what they still cannot do even with Illinois's provision — is accept a public accommodations tax credit for a building that is not a public accommodation.

We are left, then, with a component of the Religious Freedom Protection and Civil Union Act that is superfluous and merely symbolic. I do not assert that religious organizations should be denied the ability to observe whatever tenants it wishes, I simply do not believe that Section 15 is necessary to achieve this end. I also fear what the law may be implying. If the legislature specifically exempts organizations from being forced to perform civil union ceremonies, is the implication that they can be required to perform marriages between divorcees or between jew and gentile? Why codify only a single exception while leaving other exceptions up to mere 'common understanding'?

Finally, I believe Section 15 reinforces the misunderstanding that civil rights are zero sum. The truth is that we can make one group — gays and lesbians — equal without making a second group — the religious — unequal. Equality is not a limited resource, but rather something we all can and should share.

In the end, both Professor Stone and I support the Religious Freedom Protection and Civil Union Act, albeit I with less gusto. I believe the Act is a step above nothing and is certainly a welcome relief for Illinoisan same-sex couples, but is absolutely not where Illinois should stop. A "compromise," as Professor Stone calls this bill, is not equality; equality is equality.



Have any insight on this topic? Want to ask a question or make a suggestion? Click here to leave a comment.

Related Articles

Discussion

If civil unions were desirable, you'd think non-religious heterosexuals would want them as well. They simply don't extend the same rights as marriage, so they are not equal.

What's worse is that this bill says same sex marriage performed out of jurisdiction become civil unions in New Jersey. Do heterosexual marriages get downgraded to civil union status if the participants move to New Jersey?

This compromise is not about equality.

- Bill, 04/28/09 at 2:33 pm

As a gay man, I'd totally take a civil union if it means we can start getting our immigration papers in order and get a bit more security in our relationship, I'd be all over it.

- sulon, 04/28/09 at 8:33 pm
California Proposition 8 Anniversary: Revisiting the (Bad) Arguments | Family Fairness, 11/04/09 at 12:33 pm

Have a question or comment about this article? Leave me a message.