Opinion:   “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.

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Fact:  In terms of denial of use of parks, even the KKK and the hate group lead by Fred Phelps’ Westboro Baptist Church (with the unambiguous web address: godhatesfags.com) get permits to use public spaces. So far in America, intolerant views abhorrent to most people are not grounds for denial of free speech and association.

Catholic Charities is still in operation as a tax-exempt organization, even after some of its branches did opt to stop contracting with the government for adoption-placement services if it meant allowing gay couples to adopt. The fear about tax-exemption is unfounded. But the broader point is that public policy cannot be held hostage by arbitrary internal church opinions in which, for example, hundreds of children are denied families in favor of protecting “deeply held religious beliefs”.

In early America, some colonial governments licensed clergy, and tightly controlled which faiths could be licensed and by extension which could solemnize marriages. In the Carolina colony, protestant ministers could not solemnize marriages. A generally accepted aspect of the later First Amendment is that religious groups must discriminate in order to maintain their integrity, and that full religious liberty isn’t possible with state control over internal religious decisions.

Various religious organizations are free to continue their policies against various groups (women, gay people, people of other faiths) and to engage in the argument that they should be allowed to discriminate for religious reasons. But in codifying legalization of same-sex marriage, many states, including New York, have gone out of their way to state clearly that no religious organization will be required to ‘endorse’ those marriages and can’t be penalized if they refuse to perform them. The states justified these reassurances based on interpretations of the Establishment Clause of the First Amendment - the very clause we’re being told here is under threat by same-sex marriage.

These laws and exemptions seem to be distinguishing between gay weddings and other services to gay couples. In other words, religiously-affiliated groups are told they can refuse services for gay weddings, but not for gay ‘renewal of vows’ parties, presumably.

Of course, no church is required to marry any two particular people, though ministers are acting as representatives of the government when they do perform marriages. Churches are also not involved in the legal rights conferred in domestic partnership or civil unions, so by this reasoning those unions should be allowed because they don’t present churches any imperatives of endorsement.

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Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1438-39 nn.157-158]