Gay marriage in Britain and America: Is the right to disagree being eroded?


On Wednesday 13th November Hawaii, the home state of Barack Obama, became the 15th American state to legalise gay marriage, joining New York, California, Massachusetts, Connecticut, Iowa, Delaware, Minnesota, New Hampshire, Rhode Island, Vermont, Washington, Maryland, Maine, and the District of Columbia. If that seems like a long list, it should, since these states represent approximately 35% of the US population.

If you broaden your definition, there are also states like Wyoming, Wisconsin, New Mexico, Colorado, Indiana, West Virginia and Pennsylvania which have specific legal protections for same sex couples (although not full marriage laws) and states like Illinois which has civil partnerships but not marriage laws. Factoring in all of these, and the percentage of Americans that live in a state which provides some form of legal protection to gay couples jumps to 43%.

Given the general trend towards an increase in the number of states legalising gay marriage (with Illinois looking to fully recognise gay marriage soon), and with the striking down of the Proposition 8 ban on gay marriage in California by the supreme court, it looks as if the argument has been won by those supporting the marriage. Much as the Church may have objections, regarding homosexuality as something sinful, not to be glorified in an institution that is biblically sanctioned, neither the Bible nor any freedom loving government can sanction legislating on an issue purely because it's a sin. There need to be other more universal grounds too to make the case against something acceptable to everyone.

However, there is a danger that while one freedom is granted, another is taken away. California, Iowa, Maine, and Massachusetts have no provision in their gay marriage statues for religious officials to be able to decline to perform services for these couples. It is possible in these places that a church could be forced to provide services related to a gay marriage ceremony completely against their will. While this does sound like a theoretical problem, it has had some real world consequences.

Cake shops and florists in several states have been subject to boycotts, legal attacks, and even death threats for their refusal to provide services for gay wedding ceremonies. In Washington, Arlene's Flowers, operated by Barronelle Stuzman declined to provide flowers for the wedding of Rob Ingersoll and Curt Freed, his partner of nine years. Jill Mullins, of the gay rights attorney organisation QLaw Foundation, said that Ms Stuzman has violated the Washington Law Against Discrimination, but Ms Stuzman argues that she doesn't discriminate. She has hired gay staff, she has friends that are gay, she just did not want to be involved in their marriage.

This development is troubling, because of its broader implications. It is appearing to rapidly become the case that you cannot functionally disagree with the law. The previous argument in favour of gay marriage was "if you don't like it, don't use it" but now it is becoming clear that people who object are being forced to take part in ceremonies, and their right to refuse is being ignored.

In the UK, there have already been serious discussions about this with the royal assent for the gay marriage law being received on 17th July 2013. Barrie Drewitt-Barlow and his partner Tony, a millionaire couple who run a surrogacy company in Britain and the US announced plans to sue the Church of England for the right to marry there, despite the fact that the Church does not recognise gay marriages, and there are legal protections for religious groups who wish to object. Aidan O'Neill QC who had previously given evidence to the government's hearings saying that, because the Church of England is obliged to marry any eligible person who lives in a parish boundary, the "quadruple lock" that was supposed to protect the Church of England, and other objecting religious institutions, is "eminently challengeable" at the European Court of Human Rights.

If it goes ahead, this case will have a big mountain to climb, since in the UK it is already illegal to be married in many buildings that are not specifically designated for the purpose, and it's also illegal to get married either outside or in a non-permanent structure. To argue that a human right is violated just because you can't get the building you want, is such an entitled and privilege-born position that it's very difficult to take seriously, and certainly hard to imagine as being legally victorious.

Ultimately, those advocating for gay marriage have to accept that there is a co-existence issue and thus a balance to be struck. Just as Christians should not force individuals to obey the Bible through legislation, so homosexuals should not force Churches or religious individuals to participate in ceremonies they cannot in good conscience condone.

If this permissiveness regarding the erosion of right to object becomes more widespread, other Christian organisations may begin to feel the heat. Certain Christian holiday companies have policies that prohibits two unmarried people of the opposite sex from sharing a room. This is to do with the Church's position on sex before marriage. They might have no desire to enforce this policy on anyone else's holidays, so this cannot be said to be an infringement on anyone's rights. Will the law move against this kind of arrangement also?

Ultimately, freedom of religion means the ability of religious individuals and institutions to govern themselves. That means if people object to a wedding ceremony, they have a right to withdraw their involvement. In the same way that Christians should not use the law as a means of simply criminalising sin, so those in favour of gay marriage should not use the law to impose political correctness.