Religious freedom fight over gay marriage will persist

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Conservative faith leaders who have made religious liberty a rallying cry as gay marriage spread throughout the states have been stunned by Indiana's abrupt retreat from a law some advocates said would protect objectors from recognizing the unions.

But these religious conservatives are vowing to press on with their push for conscience protections—a drive that gained momentum several years ago when they saw their beliefs on marriage, abortion and other issues increasingly in the minority.

Archbishop William Lori of Baltimore, who leads the religious liberty committee of the U.S. Conference of Catholic Bishops, said the bishops' goals have not changed following the uproar this week in Indiana and to a lesser degree Arkansas.

"Individual or family-owned businesses as well as religious institutions should have the freedom to serve others consistent with their faith," Lori said in a statement.

Similarly, the Rev. Russell Moore, who leads the public policy arm of the Southern Baptist Convention, said, "We have to continue to press for religious liberty for everybody regardless of how unpopular that concept might be."

Still, Tim Schultz, president of the 1st Amendment Partnership, which works with religious groups and state lawmakers on religious liberty, said after this week's controversy over religious freedom, "the brand has definitely been tarnished."

The governors of Indiana and Arkansas signed bills Thursday hoping to quiet the national outcry over whether the laws offered a legal defense for discrimination against gays. In Arkansas, the changes more closely aligned the bill with the 1993 federal Religious Freedom Restoration Act. The Indiana law was amended to bar discrimination and prohibit social service providers from using the law as a legal defense for refusing service to the public. Liberal religious groups had been among those condemning the laws.

Religious liberty was once an issue that consistently united groups across the political and theological spectrum. But religious conservatives came to adopt religious freedom as a call to arms, as they found themselves more and more on the losing side of the culture wars.

A decade ago, the Becket Fund for Religious Liberty, a public interest law firm in Washington, convened legal scholars from across the ideological divide on gay marriage to examine potential areas where religious freedom and gay rights might clash.

First Amendment protections for worship are secure. But complications arise when faith-affiliated organizations, such as charities, hospitals and schools, try to maintain their religious identity even as large employers of people from all faiths and providers of services to the public.

The 2005 Becket meeting generated a book, "Same-Sex Marriage and Religious Liberty: Emerging Conflicts," and a subsequent policy paper that became influential among church-state experts and religious leaders closely watching the issue.

Four years later, a coalition of evangelical, Roman Catholic and Orthodox Christian leaders, citing the Rev. Martin Luther King Jr.'s "Letter from a Birmingham Jail," unveiled the "Manhattan Declaration: The Call of Christian Conscience." It pledged civil disobedience to government laws they said would compel them to violate their views.

By 2011, the Catholic bishops' conference had formed its own religious liberty committee and started organizing rallies and prayer services around the issue. The same year, the 1st Amendment Partnership was formed to work with state lawmakers.

"I think it's fair to say the faith groups saw storm clouds on the horizon," said the partnership's Schultz.

The movement had its greatest victory to date last year, when the U.S. Supreme Court ruled the Hobby Lobby arts and crafts chain and other closely held businesses with religious objections could opt out of providing the contraceptive coverage required by the Affordable Care Act.

But that win prompted a liberal backlash, and public opinion against religious exemptions hardened, especially when it came to legalizing gay marriage.

Conflicts over protections for religious objectors had been a part of every statehouse debate over legalizing gay marriage. In New York, same-sex marriage became law in 2011 only after Gov. Andrew Cuomo and the state's top two legislators struck an 11th-hour compromise on protections for religious objectors.

But when gay marriage increasingly became recognized by courts instead of legislatures, religious conservatives needed another means to seek conscience protections. Lawmakers in several states turned to the laws known as Religious Freedom Restoration Acts, which states had been adopting one-by-one since 1997, when the U.S. Supreme Court ruled that the federal version of the law did not apply to states.

But many church-state experts say the laws have been badly misrepresented amid this week's turmoil. Legal scholars say the law would not provide blanket protection for religious objectors to gay marriage, as some advocates claimed. Religious Freedom Restoration Acts give people a chance to bring a religious liberty claim before a judge, who then decides on the merits.

"Those folks who wanted to clutch onto these laws as a way to hold onto the past or stave off gay rights misunderstood what these laws would do," said Robin Fretwell Wilson, a family law specialist at the University of Illinois Law School.

Wilson advised legislators in Utah and elsewhere on a compromise enacted last month that combined religious exemptions with civil rights protections for gays.

"That's the way forward," she said.

But many religious conservatives and gay rights advocates rejected that approach, each saying it gave too much away to the other side, which means more clashes like the ones in Indiana and Arkansas are ahead.

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