Same sex civil unions & same-sex marriages (SSM) in Colorado
Part 2: 2013: Concern over individuals' religious
freedom/liberty to discriminate against minorities.
This topic is continued from the previous essay
Opposition to the civil unions bill due to religious freedom/liberty concerns:
Many social and religious conservatives in the U.S. view civil unions and same-sex marriage as interfering with their personal religious liberties and freedoms. This does not refer to religious freedom in its traditional sense -- the freedom to hold different religious beliefs, to assemble with fellow believers in worship services, to build religious centers, to proselytize, etc. Their concerns mostly follow the recent, evolving definition of the term "religious freedom:" the freedom to apply one's religious beliefs to discriminate against and/or denigrate minority groups with impunity. In this case, persons with minority sexual orientations are targeted, thus negatively affecting lesbians, gays, and bisexuals (LGBs).
The U.S. Constitution guarantees many human rights to all. However, in practice, two or more rights can sometimes conflict. Also, few if any human rights or freedoms are absolute. Most have limits. For example:
- The U.S. Constitution guarantees personal freedom of expression. So, an individual might enjoy flailing their arms around as a form of exercise. But state legislation also attempts to guarantee to people freedom from physical assault. This limits individual's freedom of expression exactly at the point where a flailing arm on one person contacts the nose of another person.
- Similarly, freedom of speech does not give the person the right to yell "Fire" in a crowded theatre.
- Although the Second Amendment to the U.S. Constitution is interpreted by many people as guaranteeing the right to own guns without limitations, the U.S. Supreme Court recently stressed that the government is is still able to regulate and restrict gun ownership. For example, without violating the Second Amendment, the government can pass laws that prohibit convicted felons from purchasing weapons.
The proposed civil union legislation grants to partners in a union almost all the state rights given to married couples. The main exception is that a same-sex partners in a civil union cannot legitimately call their relationship a marriage. The rights that they do receive have caused occasional conflicts in other states. These conflicts typically involve private contractors, retail stores, and religiously-affiliated hospitals, educational institutions, adoption agencies, etc. On personal religious grounds, their owners or administrators have wanted to refuse to recognize loving, committed same-sex relationships, civil unions and marriages. They refuse to offer these couples the same services as they offer to the general public. For example:
- The Roman Catholic Church teaches that homosexual orientation is a disordered condition and that certain forms of discrimination against lesbians, gays, and bisexuals (LGB) are moral and justified. For example, the church teaches that LGBs seeking to adopt a child should be automatically rejected. A few Catholic adoption agencies have chosen to close down rather than consider LGBs as potential adoptive parents as required by their state's laws.
- Individuals who provide to the public a marriage-related service like wedding photographs, rental of gowns and tuxedos, baking wedding cakes, rental of halls for receptions, etc. have sometimes come into conflict with state human rights legislation. They are motivated by their religious beliefs to refuse their services to LGBs getting married or entering into a civil union.
- Some religiously affiliated hospitals have occasionally refused to allow a person in a civil union to visit their partner in a hospital. or consider one partner's wishes concerning the other partner's treatment and medical procedures.
- Some companies have refused to give insurance coverage for partners of employees in a civil union. They want to treat partners in civil unions as "legal strangers" to each other and to ignore their relationship.
The text of the proposed civil union law 1 prohibits discrimination based on a persons spousal or partnership status. It specifically prohibits discrimination by adoption agencies, hospitals, mental health clinics, nursing homes, etc. If the civil unions bill is signed into law in its present form, without amendments, then many religious and social conservatives will be prevented from exercising what they feel is their religious freedom to discriminate against LGBs. Many will regard this as a violation of their religious freedoms guaranteed by the First Amendment to the U.S. Constitution. Colorado might find itself in the same situation as occurred in in some states in 1967 when the U.S. Supreme Court legalized interracial marriage across the U.S. Some religious conservatives believed at the time that God created different races in different parts of the world and intended them never to mingle socially as equals or to intermarry.
Concerns of the Alliance Defending Freedom (ADF):
Kellie Fiedorek is litigation counsel for the ADF -- a group that advocates for the right of people to freely live out their faith. She testified before the Senate Judiciary Committee about her group's concern about limitations to religious freedom and liberty that she has detected in the bill. She said it:
"... fails to provide significant safeguards for the religious liberties of all Coloradans." 2
A news release on the ADF web site quotes Ms. Fiedorek as saying:
"Religious freedom belongs to everyone, not just a handful of people. The government cannot limit constitutionally-protected religious liberties in a way that’s foreign to the Constitution. This bill fails to ensure that those liberties will be respected for all Colorado citizens. The First Amendment’s guarantee of religious freedom for all Americans is not limited to the four walls of a church." 3
The news release lists some specific instances where individuals or organizations might want to discriminate against LGBs and not be protected against lawsuits:
- The bill does state that clergypersons and faith groups can refuse to certify civil unions for same-sex couples with impunity. However, it does not specifically protect judges and magistrates who might want to refuse to provide certification.
- The bill does not guarantee that government agencies won't withhold funds from clergy, religious organizations, organizations affiliated with faith groups, etc. that want to discriminate against same-sex couples in civil unions. For example, the government might withdraw funds from religiously based adoption agencies who refuse to consider such couples as adopting parents.
- The bill:
"... fails to protect many others, including pastors or counselors that provide counseling to couples in accordance with their deeply held religious belief, ... [as well as] wedding-venue owners, clerks and recorders, bed-and-breakfast establishments, bakeries, photographers, caterers, deejays, and perhaps others." 4
The "freedom to discriminate" concerns of other groups:
- Carrie Gordon Earll is a spokesperson for CitizenLink, a program of Colorado-based Focus on the Family -- a conservative Christian group which is opposed to government recognition of same-sex relationships. She said that the bill isn't really about about benefits to same-sex couples. Rather it is the first step towards redefining marriage to include same-sex couples.
This has certainly been seen in other states where civil unions were made available. A few years later, when the deficiencies
of civil unions became obvious, same-sex marriage was introduced in many of these states. That may well happen in Colorado if the bill is signed into law. After civil unions have been available for a while, the people of Colorado may realize that partial marriage equality harmed nobody but gave additional protections to loving, committed same-sex couples and their children. The state may then be ready to legalize marriage equality.
- Mark Rohlena, president and CEO of Catholic Charities of Central Colorado, wrote an opinion piece in the Denver Post. He noted that protections in the 2012 civil union bill, as amended, had specific clauses to protect the right of child-placement agencies to discriminate against same-sex partners in a civil union. These clauses have not been included in the 2013 version. He advocates for the addition of amendments containing:
- Prohibitions against forcing child-placement agencies to place children with parties in a civil union.
- Prohibitions against state agencies taking punitive action against an agency for its refusal to place children with parties to a civil union.
- Protections for child-placement agencies from being denied any grant, contract or participation in a government program because of its refusal to place with parties to a civil union.
- Limits on civil liability.
"What will it say about our state if the civil unions legislation is used as a tool to strike at religious liberty? Make no mistake, if conscience protections are not added, we are likely to face years of litigation over religious freedom that will put the national spotlight on Colorado.
Striking at religious freedom and conscience will serve no one." 5
As a rebuttal to Rohlena's opinion piece, Brad Clark, executive director of One Colorado -- a group advocating for marriage equality -- wrote:
"... Adoption decisions should be based on what's in the best interest of the child. Adoption workers shouldn't be allowed to deny a child a loving home just because the parents happen to not fit with their religious beliefs. ..."
"Do we really want to give adoption workers the ability to turn away parents simply because of who they are?
Our priority should be making sure every child has a home with parents who have been evaluated — not on who they love, but on how well they can provide a child with a supportive environment in which to learn and grow and thrive.
This year's civil unions legislation will strengthen adoption in our state. It will ensure that committed gay and lesbian couples are able to adopt children who need and deserve forever homes. It will ensure that child-placement agencies who receive state funding are not allowed to discriminate. It will ensure that more children like Jacobb grow up in loving homes." 6
Jacobb refers to a toddler in Fort Collins, CO, whose medical care was delayed because an urgent care facility was not capable of handling two fathers as parents in their check-in form; they only had place for a father and a mother.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Senate Bill 13-011 "A bill for an act concerning authorization of civil unions," downloaded at 2013-FEB-03, at: http://www.leg.state.co.us/ [The bill may be modified later by amendments]
- Lynn Bartels, "As expected, Senate committee passes Colorado civil unions bill," Denver Post, 2013-JAN-23, at: http://www.denverpost.com/
- "Colo. bill fails to safeguard religious freedom," Alliance Defending Freedom, 2013-JAN-23, at: http://www.adfmedia.org
- "Memorandum: Legal analysis on religious discrimination within SB 13-011," Alliance Defending Freedom, 2013-JAN-18, at: http://www.adfmedia.org/
- Mark Rohlena, "If Colorado passes a civil unions bill, would Catholic Charities be justified to halt adoptions in the state? Yes," Denver Post, 2013-FEB-03, at: http://www.denverpost.com/
- Brad Clark, "If Colorado passes a civil unions bill, would Catholic Charities be justified to halt adoptions in the state? No," Denver Post, 2013-FEB-03, at: http://www.denverpost.com/
Copyright 2013 by Ontario Consultants on Religious Tolerance.
First posted: 2013-FEB-03
Latest update: 2013-FEB-04
Author: B.A. Robinson