Same-sex marriage (SSM) in Washington, DC

Religious freedom aspects of Bill
18-482 to legalize SSM in Washington

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Religious freedom aspects of the SSM bill:

Religious freedom used to mean that a person or organization was at liberty to hold whatever religious beliefs that they wish, even if they clashed with orthodox faiths and secularism. With recent civil liberty conflicts based on gender, sexual orientation and now gender identity, the term is increasingly being used to refer to the freedom of religious individuals and groups to denigrate, oppress, discriminate against, and express hatred towards others -- particularly against lesbians, gays, bisexuals, transgender persons and transsexuals (LGBT persons).

Concern over the latter form of religious freedom reached a high point in late 2009 during the passage of a federal hate crimes bill. Numerous conservative Christian parachurch groups expressed serious concern that the law against physically violent hate crimes could be used to throttle religious hate speech directed at LGBT persons. Some groups suggested that the hate crimes bill could even criminalize the act of reading some of the "clobber" passages in the Bible that have been interpreted by some theologians as condemning same-sex sexual activity.

Concern over religious freedom has also arisen over same-sex marriage. A series of fear-based PSAs on TV have used this as a theme.

Bill 18-484 was passed by the Washington DC city council in mid 2009-DEC by a large majority. It awaits a possible veto by Congress. It- legalized same-sex marriage in the District. The bill attempted to create a compromise path between:

	The quest for fundamental human rights by many LGBT persons, including the right of loving, committed same-sex couples to have the freedom to marry just like opposite-sex couples, and
	The desire -- mainly by some conservative religious and black individuals, congregations, and denominations -- to exercise their beliefs concerning sexual orientation and gender identity by freely discriminating against LGBT persons.

There does not seem to be any possibility of a win-win solution to this conflict. One side is going to have to lose at least some rights or freedoms.

The preamble to the SSM bill states its main purpose is to legalize SSM while recognizing the right of clergy and religious groups to continue to discriminate. It begins:

"...to establish a code of law for the District of Columbia to clarify that marriage between 2 people in the District of Columbia shall not be denied or limited on the basis of gender, to ensure that no minister of any religious society who is authorized to solemnize or celebrate marriages shall be required to solemnize or celebrate any marriage, and to ensure the protection of religious freedom with regard to the provision of services, accommodations, facilities, or goods related to the celebration or solemnization of a same-sex marriage. ..." ₁

Important sections of the Bill that impact marriage equality and religious freedom to discriminate:

Implementation of same-sex marriage: Section 1283 titled "Equal access to marriage" would form part of the D.C. Official Code.  It would state: "(a) Marriage is the legally recognized union of 2 persons. Any person may enter into a marriage in the District of Columbia with another person, regardless of gender, unless the marriage is expressly prohibited ..." Marriages would continue to be prohibited on the basis of youth, close genetic relationship, compulsion, etc.

Protection of the religious freedom to discriminate: Section 1288 would be augmented to state that clergy can freely refuse to marry any couple for any reason. Faith groups can freely decide their own criteria of who is eligible to be married by their leaders or clergy. Faith groups -- and non-profits that are part of faith groups -- can freely refuse to provide services, goods, etc. for same-sex weddings or receptions. Religious retreats and marriage counseling courses run by faith groups can deny access to same-sex couples, etc. The bill states:   "No priest, imam, rabbi, minister, or other official of any religious society who is authorized to solemnize or celebrate marriages shall be required to solemnize or celebrate any marriage."   "(d) Each religious society has exclusive control over its own theological doctrine, teachings, and beliefs regarding who may marry within that particular religious society's faith."   "(e) Notwithstanding any other provision of law, a religious society, or a nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a same-sex marriage, or the promotion of same-sex marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society's beliefs. A refusal to provide services, accommodations, facilities, or goods in accordance with this subsection shall not create any civil claim or cause of action, or result in a District action to penalize or withhold benefits from the religious society or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society." 1

Individuals and groups that the bill does not protect:

There is a large industry in Washington DC involved in weddings that are other than religious institutions or non-profits associated with faith groups. These include many persons and companies that provide goods and services to couples being married: wedding photographers, musicians, disk jockeys, hall and restaurant owners, clothing stores that sell or rent wedding dresses, newspapers who publish engagement and wedding announcements, food caterers, wedding cake suppliers, printers of announcement cards, etc.

There is no text in the proposed bill 18-484 that protects the right of these individuals and companies to discriminate against same-sex couples on the basis of their faith. Their acts of discrimination might come under the District of Columbia's Human Rights Act of 1977, as amended since (HRA).

The HRA stated purpose is to:

"... secure an end in the District of Columbia to discrimination for any reason other than individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status, family responsibilities, matriculation, political affiliation, disability, source of income, and place of residence or business." ₃

The HRA states, with respect to discrimination by "public accommodations:"

"It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, genetic information, disability, matriculation, political affiliation, source of income, or place of residence or business of any individual:
(1) To deny, directly or indirectly, any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations." ₄

A place of public accommodation is defined as:

"... all places included in the meaning of such terms as inns, taverns, road houses, hotels, motels ... restaurants or eating houses, ... wholesale and retail stores, and establishments dealing with goods or services of any kind, including, but not limited to, the credit facilities thereof; banks, savings and loan associations, ... clinics, hospitals, bath-houses, swimming pools, laundries and all other cleaning establishments; barber shops, beauty parlors, theatres, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, trailer camps, resort camps, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiards and pool parlors; garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls and public elevators of buildings and structures, occupied by 2 or more tenants, or by the owner and 1 or more tenants. (Emphasis by us)

Most private clubs are excluded from the HRA.

Conclusions:

It appears to us that:

	Clergypersons, religious institutions, congregations, --- perhaps even Bible study groups, home churches, and Wiccan covens etc. who wish to discriminate against same-sex couples and deny them access to goods and services can continue to discriminate and be protected from human rights charges by Bill 18-484. Of course, by discriminating on the basis of gender and sexual orientation, they might suffer adverse consequences from disaffected members who find such discrimination offensive; the latter might leave.
	Most private clubs will be able to discriminate against same-sex couples freely without any danger of being charged under the Human Rights Act (HRA).
	Other Individuals, businesses selling goods and/or services to the public and who wish to discriminate against same-sex couples involved in planning a same-sex marriage might find themselves the focus of a human rights complaint, just as if they had discriminated against people on the basis of their gender, race, origin, or any other other criteria included in the HRA.

Disclaimer:

Please take this essay -- and in fact the entire website -- with 454 grams or one pound of salt. None of us at ReligiousTolerance.org are lawyers. If you operate a business, and want to discriminate against potential customers, you might want to consult with a lawyer active in the human rights area.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today. Mirror sites are not necessarily up-to-date.

1. "A bill 18-482 in the council of the District of Columbia," Committee on Public Safety and the Judiciary, 2009-NOV-10, at: http://www.glaa.org/archive/ This is a PDF file.
2. Amanda Hess, "A guide to gay wedding discrimination," Washington City Paper, 2009-NOV-18, at: http://www.washingtoncitypaper.com/
3. "§ 2-1401.01. Intent of Council," Human Rights Act of 1977, Government of the District of Columbia, at: http://ohr.dc.gov/ This is a PDF file. A mirror site has this act in HTML format at: http://www.glaa.org/
4. "§ 1-2519. Unlawful discriminatory practices in public accommodations," Human Rights Act of 1977, Government of the District of Columbia, at: http://ohr.dc.gov/ (PDF) or http://www.glaa.org/ (HTML)

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