The New Religious Freedom Argument

Gay Marriage in the 2012 Election

About Amy Stone

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Jay Sekulow of the American Center for Law and Justice with 2012 Republican president candidate Mitt Romney in 2007, consulting during GOP meetings around 2008 presidential nominations.. — Photo by Joe Raedle/Getty Images.


The political world was abuzz this spring when the National Organization for Marriage’s confidential battle plan to block LGBTQ marriage rights became public in a Maine lawsuit and the Human Rights Campaign posted it for the world to see. 1  The National Organization for Marriage (NOM) had formed in 2007 to fight marriage equality—California’s Proposition 8 battle was its coming out party—and wrote the strategy document soon after  its successful campaign to overturn marriage equality laws in Maine in 2009.

“Gay marriage is the tip of the spear, the weapon that will be and is being used to marginalize and repress Christianity and the church,” NOM wrote in its December 2009 strategy document, drawing on the longstanding sense of conservative Christians that they are persecuted. We learned of the group’s tactic of creating wedges between (straight) Blacks and gays under the slogan, “Not a Civil Right.” We also learned that it resurrected arguments that same-sex marriage is a threat to people’s religious liberties.

“People of faith are increasingly denounced as bigots simply because they stand up for marriage,” the document reports. Earlier it states, “When the government punishes some Methodists because they don’t allow gay union ceremonies on their own property, we need to capture not only the facts, but the stories—the faces, the names, the emotions of the people threatened with litigation.

We are seeing religious liberty arguments this fall as NOM and state “family” alliances lead the battle around marriage ballot initiatives in Washington State, Maine, Maryland, and Minnesota. In three of those states, the election could result in legalized same-sex marriage, a historical first.

This article appears in the Fall 2012 Public Eye.

Christian Right organizations are quite tactical in their choice of arguments they use to attract moderates, and in past years, have won all but one same-sex marriage ban at the state ballot box.  These bans were typically constitutional amendments to outlaw same-sex marriage in states without existing same-sex marriage rights, an attempt to prevent “activist” judges/politicians from enacting pro-LGBTQ laws. The vote in North Carolina earlier this year is a case in point. Since 1998 same-sex marriage bans have multiplied on ballots in states across the country; in the November 2004 election alone there were eleven same-sex marriage bans on ballots.

In the absence of a federal Employment Non-Discrimination Act (ENDA), same-sex marriage law, or other federal protections, LGBTQ rights laws are susceptible to challenge by ballot measures. Organizers have to work state-by-state and city-by-city to pass laws, which can be challenged by a referendum. In addition, in many states and municipalities, Christian Right organizers can use initiatives to write new, anti-gay laws to counteract any LGBTQ gains in that state as in this fall’s votes.

But in recent years, the Right has had to react against legalized same-sex marriage at the state level. For example, California’s Proposition 8 in 2008 and Maine’s Question 1 in 2009 sought to overturn court rulings that legalized same-sex marriage. Earlier this year, legislators in Washington and Maryland legalized same-sex marriage; and in Maine, LGBTQ organizations put same-sex marriage on the ballot after Question 1 passed in 2009. Now, voters in these three states will decide whether or not to legalize same-sex marriage; voters in Minnesota will decide the fate of a same-sex marriage ban.

The anti-LGBTQ campaigns in all four states use the same organizing tactics that were employed so effectively in California and Maine a few years ago, including large scale grassroots mobilizing and the use of the same political consultants.2 Both campaigns excelled at political messaging that appeals to moderates, for instance by advocating for civil unions or domestic partnerships as a reasonable alternative to same-sex marriage.

The Right’s new focus on religious freedom tries to reach a broad audience by using civil rights style language rather than morality to make its claim. Although the Right will no doubt continue to warn of how LGBTQ marriage rights threaten to children, schools, and marriage, arguments about religious freedom—seen in the fight against contraception coverage in Obamacare and elsewhere—are on the rise.

Strategy Shift

On September 4, 2012, the four Catholic bishops of Washington State declared that the vote on same-sex marriage in November “would have a chilling effect on religious liberty and the right of conscience.” They argued that the redefinition of marriage would lead to discrimination against religious individuals, as “no institution or individual could propose that married mothers and fathers provide a singular benefit to children without being accused of discrimination. Recent attacks on churches, businesses and nonprofit organizations that express their conscientious objection to the redefinition of marriage underscore the danger.”3

These claims were echoed earlier in the week in Maryland, when Derek McCoy, executive director of the Maryland Family Alliance, claimed that business owners may be sued if they disapprove of same-sex marriage.4

We heard similar arguments earlier this year when faith-based conservatives put the defense of religious freedom at the center of the fight against contraceptive coverage in the Patient Protection and Affordable Care Act (ACA). Although ACA does not mandate churches to cover contraception in their health plans, faith-based colleges, charities, and hospitals would be required to do so.

Newspaper headlines shouted “Obama Insurance Decision Declares War on Religion;” Mitt Romney’s political ad “Be Not Afraid” played on this fear of religious persecution.5 According to New York Times reporter Dorothy Samuels “Opponents of the contraception rule claim the fight isn’t about birth control, but religious liberty. It’s about both, though they are right that the battle for religious exemptions goes well beyond birth control coverage—to employment discrimination, zoning, mandated reporting of child abuse, a pharmacist’s duty to fill valid prescriptions and that of hospitals to give life-saving emergency care.”6

The Right has long evoked religious freedom as a threat to organized religion in campaigns against local and state non-discrimination laws that include sexual orientation and gender identity. The Right argues that faith-based organizations, including schools, will be forced to hire gay men and lesbians due to nondiscrimination laws. These messages include stories about churches being forced to hire gay music teachers in St. Paul,7 fraternal orders and service clubs being able to screen for sexual behavior,8and general concerns about individual religious liberty.9 To allay these concerns, some nondiscrimination laws have a clause that exempts churches and synagogues from the law.

Religious freedom arguments used to oppose same-sex marriage frequently make the spurious claim that churches and synagogues would be required to conduct same-sex marriages. We still hear that argument in the false claim that churches will be forced to open their facilities to same-sex marriage ceremonies.

This year, Protect Marriage Maine invoked the story about the Ocean Grove, New Jersey Methodists losing a state tax exemption for a beachside pagoda after they refused to rent it out for a same-sex marriage. In 2009, NOM broadcast a national ad based on the case.10

The National Organization for Marriage and other campaigners warn not only churches but faith-based nonprofits are threatened. In Rhode Island, NOM warned, “Religious groups like Catholic Charities or the Salvation Army may lose their tax exemptions, or be denied the use of parks and other public facilities, unless they endorse gay marriage.”11

Christian Right organizations frequently reference Catholic Charities shutting down their foster care services in Massachusetts, New York, Illinois, and Washington, D.C, because they refused to let same-sex couples adopt. The group also changed its health insurance policies rather than provide insurance for same-sex partners of employees.

This fall, we are also seeing arguments that say the threat to religious freedom is not just to religious institutions and organizations but to individuals’ religious liberties. For example, in a Maryland Marriage Alliance message on their website they argue that professionals in the wedding industry may be fined and licensed professionals such as doctors, counselors and lawyers could lose their licenses if they oppose same-sex marriage: “A counselor, for example, could not refuse “marriage therapy” to a same-sex couple because she doesn’t believe in gay marriage.”12 Maryland Archbishop Edwin F. O’Brien warned,

Despite the limited measures some states have taken to protect religious institutions, none have recognized the religious freedom of individuals. Specifically, they should be protected against having to violate their moral beliefs about marriage. It is hard to believe that any measure can avoid the inevitable collision that redefining marriage will bring between government and people of faith. The slippery slope has already become an impending avalanche and who can seriously guarantee that efforts to promote “religious exemptions” will survive future judicial or legislative reversals.13

This “inevitable collision…between government and people of faith” invokes a definition of religious freedom that focuses on an individual’s ability to make decisions in accordance with their faith.

Religious Freedom

What is religious freedom? Matthew Wilson, associate professor of political science at Southern Methodist University, argues that today’s understanding goes far beyond the right to worship and includes “the ability to live a life of faith in the world, to act socially, economically, politically, etc. in concert with one’s convictions, without fear of being coerced by government into violating the tenets of faith.”14

This definition is echoed by Manhattan Declaration co-author and Christian Right leader Chuck Colson who commented on a speech by Hillary Clinton that “in one fell swoop, she changed our God-given right to freedom of religion, a public act, to a much more restricted ‘freedom of worship,’ a private act, which any Chinese official could go along with,” while placing the “‘right to love in the way they choose’ as a fundamental human right.”15

The Manhattan Declaration, the November 2009 statement signed by conservative Roman Catholic, evangelical, and orthodox Christian leaders, promises “resistance to the point of civil disobedience against any legislation that might implicate their churches or charities in abortion, embryo-destructive research or same-sex marriage.”16 The document also says,

Because the sanctity of human life, the dignity of marriage as a union of husband and wife and the freedom of conscience and religion are foundational principles of justice and the common good, we are compelled by our Christian faith to speak and act in their defense.

An argument about religious freedom focuses on the ability of individuals to actualize themselves and to make decisions in all aspects of their life in accordance with their beliefs and without obstruction. Religious freedom as living a life of faith in the world includes the ability to bring religion into government, educational, and corporate environments. Thus controversies about religious freedom flared over prayer in public schools, the health care coverage of faith-based institutions, fast food company Chick-fil-A’s statement against same-sex marriage, the posting of the Ten Commandments in government buildings, and, of course, LGBTQ rights.

Rather than arguing about a particular moral perspective (e.g., the immorality of homosexuality), religious freedom rests on an argument that all individuals should have the freedom to make decisions based on their religion and should not be obstructed in their daily lives in doing so.

Religious freedom is often used rhetorically as a civil right, with parallels made to civil rights for African Americans or LGBTQ people. For example, in late 2011, a Macy’s department store employee in San Antonio, Texas, would not allow a transgender customer to access the women’s fitting room, and she made an argument that “it would go against her religious beliefs to lie that he was a woman or compromise with homosexuality.”17 This decision contradicted LGBTQ friendly company policies, and the employee was fired. As this story was reported in Christian newspapers and on Christian Right organization websites, the woman in this case was defending her religious freedom, her ability to make choices in accordance with her religious beliefs.18 Indeed, in her defense of her decision she compared company policies that protected religion with those very rights protecting the LGBTQ community.

The fall’s religious freedom messaging does not concentrate on the specifics of a religious belief (although almost all arguments are about Judeo-Christian belief systems) but rather on an individual’s right to follow their religion at all times. These arguments avoid universalizing morality and instead argue about individuals’ rights. In political messages about same-sex marriage and religious freedom, the focus is not directly on whether or not same-sex marriage is inherently moral or immoral but rather whether or not individuals who do not believe in same-sex marriage due to their religion will be forced to be supportive of same-sex marriage.

For Christian Right organizers, this conflict between government and people of faith will include everything from criminal prosecution to persecution under hate speech laws to being sued for their beliefs to being labeled “bigots.” In a Minnesota Marriage Minute advertisement, anti-gay group Minnesota for Marriage spokesperson Kalley Yanta said, “Same-sex marriage impacts the religious freedom of individuals and groups in many profound ways. If marriage is redefined to be genderless and people and groups do not accept that, they will be in conflict with the law and subject to legal consequences. This already has occurred in a variety of ways in other states.”19

The National Organization for Marriage—one of Minnesota for Marriage’s organizational supporters—is tracking these cases of supposed discrimination with plans to “gather a rapid response team of videographers and reporters to collect and record stories of those who have been harassed, threatened or intimidated as a result of their support for traditional views on marriage and sexuality.”20 NOM was following in the footsteps of the American Family Association, which reminded the activists at the Christian Right Values Voter Summit this September that its “Speechless: Silencing the Christians” documentary is available in seven easy to share snippets on YouTube.21

The argument may have traction, especially as there has been a growing conservative activism in support of “religious freedom” laws. Despite Boerne v. Flores, the 1997 Supreme Court case that struck down the federal Religious Freedom Restoration Act (RFRA) due to its restrictions on states, similar bills continue to be introduced—most recently in 2012 by Sen. Marco Rubio (R-FL) to oppose contraceptive coverage in the ACA.22 Local and state efforts have proven more successful, with voters passing RFRA ballot measures in over ten states.23 Colorado organizers have tried for years to put a religious freedom initiative on the ballot. Just a few months ago, North Dakota voted down Measure 3, which would have prevented the government from “burdening a person or religious organization’s religious liberty.”24 Measure 3 was sponsored by the Religious Liberty Restoration Amendment Committee and received financial support from Roman Catholic organizations and the North Dakota Family Alliance, which is one of dozens of state-level groups loosely affiliated with the Family Research Council. 25 The North Dakota Family Alliance also coordinated the initiative campaign to get the 2004 ban on same-sex marriage on the ballot in their state.26 Some political ads for Measure 3 focused on religious liberties for “faith-based hospitals, schools, universities and charities.”27 On August 7, 20102, Missouri voters overwhelmingly backed the Public Prayer Amendment, allowing voluntary prayer in schools and other public displays of religion even though opponents said it was already protected under the U.S. Constitution. Florida voters have a chance to vote on Amendment 8 in November, which would repeal the state’s ban on religious groups receiving government funding. Teachers unions are big opponents because it would pave the way for state funding of religious schools through vouchers.

Appeal to moderate voters

Christian Right arguments about religious freedom are effective because they potentially appeal to three key groups: evangelical Christians, libertarians who want less government involvement in their lives, and moderates who are supportive of civil rights.

Since the first anti-gay referendum in Boulder, Colorado in 1974, the Christian Right has shifted its strategy to succeed at the ballot box, experimenting with different types of ballot measures and messaging. The political messages that the Christian Right has developed include everything from virulently homophobic messages about pedophilia to more innocuous messages about kids in schools. This latest argument about the threat to religious freedom fits into a long tradition of the Christian Right creating sophisticated messages for secular and moderate voters.

In same-sex marriage bans, the Right has used gay male spokespeople, advocated for civil unions rather than same-sex marriage, and argued that same-sex marriage would create a “genderless marriage.”28 For example, a political ad used in the Yes on 8 campaign in California depicted a heterosexual family who were close friends with their gay neighbors but opposed extending the benefits of marriage to them. The ad described how the parents, Jan and Tom, were relieved to find out that their neighbors would get the same benefits of marriage with a domestic partnership.29 One of the most successful messages warned against teaching same-sex marriage in schools. In this messaging, opponents of same-sex marriage argue that elementary school children will learn about same-sex marriage, gay sex, and same-sex parents in the classroom. They also display books that positively portray gay and lesbian parents or families, such as Daddy’s Wedding or King & King. Some arguments reach back to the 1990s, when the Christian Right framed civil rights as only necessary for “legitimate minorities” like African Americans and asserted that gays were trying to get “special rights,” which would dilute the rights of these so-called legitimate minorities.

These types of Christian Right messages have been effective in persuading moderate and secular voters. Researcher David Dodge and Vote for Equality in Los Angeles found that the Right’s “moderate” advertisements focusing on children in schools had a negative impact (an anti-LGBTQ effect) on 15 percent of all voters, and 25 percent of all undecided voters. In early polling for the Yes on 8 campaign in 2008 conducted by Lawrence Research, a public relations firm active in anti-gay campaigns, more than 60 percent of “No” supporters polled had changed their mind when confronted with information about how health education teachers would have to teach children about same-sex marriage.30 In 1992, for the controversial initiative Colorado Amendment 2, 40 percent of voters surveyed in exit polls asserted that they had voted “yes” because they believed gay people should not have “special rights.”31

The current polling on same-sex marriage and religious freedom shows a growing majority of Americans support same-sex marriage and a large percentage are also concerned about religious freedom. Since 2004 there has been a 16-point increase in the percentage of Americans who support same-sex marriage, with a majority now in favor.32 During the debates about health care and the ACA, over 59 percent of Americans surveyed by the Pew Research Center had heard about bishops’ protest against policies that restrict religious liberties. Of those, 41 percent of all American adults and 56 percent of Roman Catholics agreed with these concerns about religious liberty and freedom.33

This past summer, the U.S. Conference of Catholic Bishops designated June 21 to July 4 as a “Fortnight for Freedom” which focused on the ACA’s threat to religious freedom and, at times, marriage.34 On day six of the Fortnight for Freedom, the argument was made that “changing marriage law will jeopardize the religious liberty of both individuals and communities or institutions.” The legalization of same-sex marriage would create conflict “on a massive scale between the law and religious institutions and families, as the State will apply various sanctions against the Church for its refusal to comply with the State’s definition.”35

While the Fortnight’s messaging and interpretation conjure up scare tactics, the real potential of the religious freedom argument may be seen after November, in the courts. Marc D. Stern, the American Jewish Committee’s associate general counsel for legal activity, said that while “no one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them,” he believes there may be consequences for other religiously-run institutions such as “schools, health care centers, social service agencies, summer camps, homeless shelters, nursing homes, orphanages, retreat houses, community centers, athletic programs and private businesses.”36

In recent years it has been the courts that crucially defended protections for the LGBTQ community—not voters at the ballot box. But that could change.

This article appears in the Fall 2012 issue of The Public Eye (pdf).


1 Beth Hawkins, “Memos in NOM suit reveal anti-gay-marriage strategies,” Minnesota Post, April 4, 2012. For the key strategy document, visit http://archive.org/stream/NationalOrganizationForMarriageDocuments/Nom3_djvu.txt

2 Surina Khan, “Tying the Not,” Public Eye, Spring 2009.

3 Joel Connelly, “Catholic bishops: Gay marriage threatens religious liberty,” Seattle Post-Intelligencer, September 4, 2012.

4 “Gay marriage: The misinformation campaign begins,” Baltimore Sun, August, 26, 2012.

5 “Be Not Afraid” video, MittRomney, YouTube, August 9, 2012.

6 Dorothy Samuel, “Back to First Principles on Religious Freedom,” New York Times, February 25, 2012.

7 Citizens for an Informed Ferndale, political flyer, “Vote No on the Civil Rights Ordinance,” 1991.

8 Moral Majority of Santa Clara County, political flyer, “Enough is Enough,” 1980, Box 169, National Gay and Lesbian Task Force Records, #7301, Division of Rare and Manuscript Collections, Cornell University Library.

9 Citizens Opposing Special Treatment, political flyer, “Vote Yes on C. Keep Civil Rights Strong!” 1998.

10 “Consequences of Redefining Marriage,” Protect Marriage Maine.. NOM drew on the case for its 2009 “Gathering Storm” ad campaign as well. See Timothy Kincaid, “Delightfully Crazy Dingbat Insane Ookie Spookie Ad from National Organization for Marriage,” Box Turtle Bulletin, April 2009.

11 “Frequently Asked Questions,” National Organization for Marriage.

12 “The Threat to Marriage,” Maryland Marriage Alliance.

13 Edwin F. O’Brien, “No Time To Abandon Conviction,” The Catholic Review, July 28, 2011.

14 Bill McKenzie, “Is religious freedom under attack in America?” The Dallas Morning News blog, May 29, 2012.

15 Brian Tashman, “Chuck Colson’s Latest Pathetic Claim that LGBTQ Rights is Undermining Religious Freedom,” Right Wing Watch, January 18, 2012.

16 “Manhattan Declaration: A Call of Christian Conscience,”www.manhattandeclaration.org

17 Alex Murashko, “Macy’s Fires Christian Worker for Not Allowing Transgender in Women’s Fitting Room,” Christian Post, December 7, 2011.

18 “Men Using Women’s Fitting Rooms at Macy’s Featured on Fox News,” Liberty Counsel, December 9, 2011.

19 http://www.nomblog.com/24246/

20 “NOM Deposition: Exhibit 25,” National Organization for Marriage, Inc v. McKee, 669 F.3d 34 (1st Cir. 2012) 2012 BL 25333.

21 “Speechless…Silencing the Christians” video, Giramino, YouTube, February 15, 2009.

22 Marci A. Hamilton, “North Dakota’s Religious Freedom Restoration Act (RFRA) Signals Religious Lobbyists’ New and Disturbing Approach to Statute-based Free Exercise Rights,” Verdict, May 3, 2012; Donald R. McClarey, “Marco Rubio Introduces Religious Freedom Restoration Act of 2012,” The American Catholic, February 1, 2012. http://the-american-catholic.com/2012/02/01/marco-rubio-introduces-religious-freedom-restoration-act-of-2012/

23 Amy Stone, Gay Rights at the Ballot Box (Minneapolis: University of Minnesota Press, 2012), 15.

24 North Dakota Religious Freedom Amendment, Measure 3, June 2012.

25 On the state-level family groups, see Frederick Clarkson, “Takin’ It to the States: The Rise of Conservative State-Level ThinkTanks,” Public Eye, Summer/Fall 1999; North Dakota Religious Freedom Amendment, Measure 3, June 2012; “Religious Liberty Ballot Restoration Amendment Committee,” Follow the Money, National Institute on Money in State Politics.

26 “Gay Marriage Ban Passed in North Dakota,” USA Today, November 3, 2004.

27 “Freedom to Serve” video, YesOnMeasure3, YouTube, May 29, 2012.

28 Daniel R. Pinello, America’s Struggle for Same-Sex Marriage (New York: Cambridge University Press, 2006), 124, 161, 175.

29 Yes on 8, “Unnamed Ad,” video retrieved May 10, 2010 from http://whatisprop8.com.

30 Frank Schubert & Jeff Flint, “Case Study, Passing Prop 8,” Campaigns & Elections, February 2009.

31 Lisa Keen and Suzanne B. Goldberg. Strangers to the Law: Gay People in Trial (Ann Arbor: University of Michigan Press, 1998).

32 “More Support for Gun Rights, Gay Marriage than in 2008 or 2004,” Pew Research Center, April 25, 2012.

33 “Catholics Share Bishops’ Concerns about Religious Liberty But Catholic Voters Back Obama on Social Issues,” Pew Research Center, August 1, 2012.

34 “Freedom of Religion is Safe,” Los Angeles Times, June 17, 2012; McKenzie, “Is religious freedom under attack in America?”

35 “Fortnight for Freedom, Day 6: How could changing the legal definition of marriage have any effect on religious liberty?” Marriage Unique for a Reason, June 26, 2012.

36 Peter Steinfels, “Will Same-Sex Marriage Collide With Religious Liberty?” New York Times, June 10, 2006.

Amy Stone is the author of Gay Rights at the Ballot Box (Minneapolis: University of Minnesota Press, 2012) and assistant professor of sociology at Trinity University in San Antonio, Texas.