May 23, 2018
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Same-sex marriage no threat to religious liberties

By Andrew Ketterer, Special to the BDN

As a former attorney general of Maine, I seek to reassure voters that our religious liberties are secure whatever the outcome of the vote on Question 1. The claims made by Virginia law professor Robin Fretwell Wilson are her opinion, but they are not the facts under Maine law, “Same-sex marriage law lacks religious protection” (BDN, Oct. 17).

All persons and religious institutions have the absolute right of religious belief without government regulation.

Our laws also protect civil rights, and the challenge is always how to protect both religious freedom and civil rights. The marriage law at issue in Question 1 contains an “affirmation of religious freedom” to protect the liberties of religious organizations. This ensures that anyone who performs marriages may refuse to do so for any reason, without any legal penalty. This includes clergy, lawyers and notaries. Some would say this goes too far, but it certainly shows that no one is trying to suppress religious liberties.

Under existing law, religious institutions cannot be required to hire a religious official who is married to a same-sex partner. This is among the religious protections in the Free Exercise Clause of the First Amendment of the federal Constitution.

The Maine Supreme Judicial Court has recognized that our state constitutional protection for religion encompasses both “freedom to believe and freedom to act.” If someone’s religious beliefs are significantly burdened by some interaction with the marriage of a same-sex couple, that person has a strong claim to protection under the Maine Constitution.

Other Maine laws protect religious liberties, too. Under the nondiscrimination law, an exemption permits religious institutions to ignore the law to the extent necessary to conform to their religious tenets. Among other things, that means a church that believes homosexuality is wrong can freely choose to hire only heterosexuals without running afoul of the law.

Yet Ms. Wilson argues for even more exemptions to the nondiscrimination law. She asks for an unprecedented exemption allowing any individual who runs a business to refuse services such as flowers, cakes or photography for a same-sex couple’s wedding. Without that exemption, she says, religious objectors will be forced to choose between their “conscience” and their “livelihood.”

But really, isn’t this a matter of decency and common sense? Such a person can have an honest conversation with the would-be customer about his or her misgivings and offer a referral. What couple would want someone involved with their wedding that doesn’t want to be? Perhaps this is why there are no known cases of businesses being sued by same-sex couples in Massachusetts in the 5½ years marriage has been available there.

Ms. Wilson also argues that when the state is disbursing money for public projects, the fact that a religious entity discriminates should be irrelevant to government funding decisions. But the state must — and often does — consider public policy when deciding to whom it should disburse money for projects that will benefit its citizenry as a whole. When you do the government’s business and you do it with taxpayer money, you must follow the government’s rules — not the other way around.

But there are exceptions even to this rule. Ms. Wilson points to one Maine case in which Portland sued Catholic Charities for its failure to comply with Portland’s human rights ordinance and provide employee benefits to domestic partners. What she fails to mention makes all the difference. Catholic Charities was able to use a religion-friendly provision in the federal ERISA law and opt to become a “church plan.” Once Catholic Charities was a church plan, it was no longer subject to local laws like Portland’s regarding health and retirement benefits and could legally deny those fringe benefits to gay and lesbian employees.

Finally, Ms. Wilson suggests that Maine’s religious liberty protections are insufficient compared to those in New Hampshire, Vermont, and Connecticut, where state legislatures also approved marriage laws. Yet, in a May 3 letter to the Los Angeles Times, she complained that New Hampshire’s law only “pay[s] lip service to religious freedom.” In fact, each of these states, like Maine, made some accommodation to religious objectors in its marriage laws.

Voters can be confident that they can vote No on 1 and still protect their own, and their neighbor’s, religious freedoms.

Andrew Ketterer is a former three-term Maine attorney general and a former president of the National Association of Attorneys General. He is the principal of the Andrew Ketterer Law Firm in Norridgewock.

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