“Conscience protection” is a key selling point for Gov. Martin O’Malley as he urges passage of the same sex marriage legislation he introduced in Annapolis this past week.
But it’s a fraud that would only serve to undermine religious liberty, pretenses notwithstanding.
O’Malley is taking his cues from New York Gov. Andrew Cuomo who last June used the guise of a conscience clause as political cover for wavering legislators in Albany, garnering him the votes needed to force passage of same sex marriage there.
According to the Baltimore Sun, O’Malley claims that the religious protections in his bill are “a little clearer” than in the Maryland bill that failed last year.
But Senate Bill 241 “The Civil Marriage Protection Act” is a mockery of religious freedom.
Consider the bill’s statement that each religious organization has “exclusive control over its own theological doctrine, policy teachings and beliefs regarding who may marry under that faith.”
Such statements should unnerve us precisely because they suggest that such control by the church of its own beliefs is exercised only at the pleasure of the state and the state in this instance deigns to give its special permission for the church to do so.
The biggest failure of the bill, however, is the absence of protection for the conscience of individuals. Anyone who in a wedding related business in the state of Maryland will be fair game for a discrimination lawsuit if he or she declines services because of deeply-held religious convictions.
This failing seems to reflect a major shift in the general understanding of conscience clauses. In the past they were intended to protect individuals from being coerced into performing acts that violated their moral convictions.
The selective service, for example, has long allowed conscripts the status of conscientious objector. And shortly after the Supreme Court legalized all abortion in 1973, Congress passed the Church Amendment intended to protect the conscience rights of healthcare workers as well as religious hospitals.
But any clause that does not protect individuals -- particularly those most likely to be called upon to perform acts they find morally objectionable -- is meaningless.
Hostility towards any exercise of conscience informed by traditional morality – whether by individuals or religious institutions -- has become routine and frequent in today’s political climate. Consider, for example:
- Conscience clauses are on a collision course with hate crimes law. Note that the Southern Poverty Law Center lists the Family Research Council as a “hate group” merely because of its opposition to same sex marriage.
- Catholic Charities had to cease adoption services in Massachusetts in 2006 because same sex marriage laws there required them to them to violate conscience or lose tax exempt status.
- The ACLU and Planned Parenthood relentlessly challenge the legality of all conscience clauses, referring to them only as “refusal” clauses.
- Last year the Obama Administration reversed a “right of conscience rule” for health care workers in federally funded facilities.
Such developments helped Cuomo move immediately after passage of his same sex marriage law to shut up New York government clerks who expressed moral objections to signing same sex marriage licenses.
Cuomo commanded every clerk to “enforce the law” or resign. The Nassau County DA threatened prosecution of any clerk who didn’t march in lockstep, even if another clerk in the office was willing to sign.
A gay activist and officer of the New York Association of City and Village Clerks chimed in that such people should “leave their religious beliefs in church on Sunday.”
This is what we’re likely to see in Maryland if this bill passes.
Conscience clauses now provide a legal veneer under which the state can increasingly restrict individuals’ expression of conscience to the confines – or, if you will – the closet of “church on Sunday.”
Stella Morabito is a Maryland writer on issues of culture, society and education.