The Republican Platform and Gay Rights

The Republican Platform has arrived after much anticipation. It may very well be the most conservative platform the Party has yet to produce. The document embraces right leaning positions on everything from expanding gun rights to prosecuting pornography. But for those of us with a keen interest in the LGBT rights movement, the platform notably takes some positions that simply do not reflect reality.

It is important to approach and analyze the platform planks not from a partisan perspective, but from an academic, fact-driven one.

The Republican platform's declares that, "We . . . condemn the State blacklisting of religious groups which decline to arrange adoptions by same-sex couples. We condemn the hate campaigns, threats of violence, and vandalism by proponents of same-sex marriage against advocates of traditional marriage and call for a federal investigation into attempts to deny religious believers their civil rights."

I've long studied marriage equality in the state legislative and judicial process. Through dozens of interviews, combing through statutory language, reviews of floor debates, and reading numerous journalistic accounts, I have and continue to piece together this important story. I cannot faithfully say that the crux of the Party's assertion is true.

It is true that adoption agencies, most notably Catholic Charities, were forced to close their doors in Washington, D.C., Illinois, and Massachusetts because they did not want to adopt out to same-sex couples. The merits of permitting these types of agencies to discriminate based on sexual orientation notwithstanding; the GOP has a clear position on the issue that is grounded in reality.

However, I am sincerely perplexed and dumbfounded at the notion that marriage equality efforts have been uncivil or violent. Indeed, floor debates in Washington and Maryland, for example, were thoughtful and respectful. Both proponents and opponents of same-sex marriage ensured that decorum was maintained. Arguments were made on both sides of the issue that were heartfelt, honest, and respectful. Dozens upon dozens of state legislators-- Republicans, Democrats, marriage equality supporters, and those opposed-- served with admirable distinction to raise the level of discourse.

Perhaps this plank refers to things outside the governmental process, like the recent Chick-Fil-A flap. However, lodging complaints about using the power of the purse to influence corporate positions on social policy is dangerous territory considering opponents of LGBT rights also engage in commercial boycotts of companies like Starbucks, J.C. Penny, or General Mills who take social positions they find distasteful.

Does marriage equality legislation deprive "religious objectors their civil rights?" I have to suggest the answer is constitutionally and practically "no."

Every jurisdiction that has marriage equality provides exemptions in existing nondiscrimination law for religious institutions from providing space for the celebration or solemnization of marriages inconsistent with those institutions' religious tenants. Four states in addition to pending laws in Maryland and Washington allow religiously affiliated organization to limit privileges in celebration of marriage.

Six jurisdictions expressly immunize religious institutions or religious organizations from private suits for failing to solemnize or celebrate a marriage. Another five, provide in their marriage equality legislation prohibitions of government penalties, e.g. the awarding of government contracts or tax exemption status, for religious organizations that object to same-sex marriages.

New Hampshire and Vermont grant exemptions for religious organizations that do not want to provide insurance coverage for married same-sex couples. Maryland and Connecticut's exemptions permit adoption and foster care agencies, like Catholic Charities, to limit placement of children to married heterosexuals, provided they receive no government funding.

New Hampshire and New York provide immunity for individual employees of religious organizations that refuse to solemnize or celebrate same-sex marriages from lawsuits.

All of these states provide greater religious liberty protections than constitutionally required under the standard for religious liberty claims authored by the not-so-liberal Justice Scalia in the landmark case, Employment Division v. Smith.

I think it should also be noted what the platform does not mention that warrants contemplation. Religious liberty is not a one-dimensional issue. While many religious denominations oppose same-sex marriages, including the Catholic Church and the Southern Baptist Convention, many others do not. In jurisdictions that do not recognize same-sex marriages, religious groups like the Episcopal Church, Quakers, or the United Church of Christ cannot officiate over unions they are otherwise inclined to bless because of legal restrictions. What of their religious liberty?

Reading the platform, one might easily forget that without Republicans marriage equality would be impossible. Republican votes were critical in Vermont, New Hampshire, New York, Washington, and Maryland. They are crucial for efforts to override Governor Christie's veto in New Jersey. Many Republicans have courageously stood up for their beliefs on LGBT rights issues even when their votes weren't needed. Maureen Walsh and Sam Hunt in Washington House of Representatives are excellent examples of that. Some have even lost their seats as a result. Many Republicans played an important role in shaping the final product of marriage equality legislation that allowed it to move forward, like in New York, even if at the end of the day they voted against it.

It is important to carefully weigh facts and reason when thinking about broad and important issues concerning social policy. Certainly, I do not necessarily subscribe to the characterizations of the marriage equality movement to which the Republican Party Platform adheres because they are partly accurate. However, at the end of the day, it is worth remembering that this is a platform. And that for the LGBT community, the Republican Party is home to many unsuspecting allies and reasonable minds open to legitimate discourse on the most controversial and hotly contested social policy issues of the day.