The debate over equality for same-sex and unmarried elderly couples

The debate over equality for same-sex and unmarried elderly couples
By JASON PIERCESON
Copyright by THE STATE JOURNAL-REGISTER (Springfield, IL)
Posted Mar 28, 2009 @ 12:03 AM

The debate over equality for same-sex and unmarried elderly couples continues in Illinois with the passage of the Religious Freedom Protection and Civil Union Act by the Illinois House’s Youth and Family Committee.

At the hearing, most of the testimony from opponents invoked religious objections to the legislation, even though the bill explicitly states that no church will be required to perform civil unions. On the positive side, it appears that opponents of rights and equal treatment under the law for sexual minorities no longer feel comfortable making public statements that are rooted in myths and stereotypes. Public opinion has clearly shifted against these extreme views, and groups like the American Psychological Association and the American Academy of Pediatrics have clearly stated that same-sex relationships are equivalent to opposite-sex relationships. In other words, the window of opportunity for the effective use of this extreme language in the public square is rapidly closing, if not already completely closed.

This has left opponents with two arguments. First, they argue that the law should be consistent with their version of theology. The only relationship that is “natural” is a heterosexual one, and the law should recognize nothing else.

The danger of a purely theological approach and applying this subjective assessment to what is “natural” to issues of civil rights is chillingly exemplified by a Virginia judge who stated in defense of laws that made interracial marriage illegal: “Almighty God created the races ... and he placed them on separate continents ... The fact that he separated the races shows that he did not intend for the races to mix.” This, of course, was not the theology of all religious Americans at the time, but it was a view favored by many, perhaps a majority.

Opponents insist that their theology ought to directly drive public policy in the state. While religious voices are certainly valuable in all public policy discussions, the public and lawmakers generally reject this direct link. Many religious individuals and groups want the law to further limit or ban reproductive choice, but a majority of the people and lawmakers disagree. Many religious individuals and groups want no recognition for same-sex couples and their families in the law. The majority of the people of the state disagree, and hopefully lawmakers will listen. Poll after poll reflects strong support for relationship equality through civil unions at the state and national levels. Only about a third of the residents of Illinois want no recognition of same-sex relationships. Of course, not all theological perspectives lead to opposition to civil unions. Nearly 150 clergy from around the state have voiced support for the proposed law.

The second argument of opponents is perhaps more serious: Civil unions will limit religious freedom, even though churches have the freedom to refuse to perform civil unions under the bill. In fact, one of the opponents who testified at the hearing referenced a photographer in New Mexico who was fined by the state’s human rights commission for refusing to photograph a same-sex commitment ceremony. The problem with this example is that New Mexico does not have a law recognizing same-sex relationships. However, the state does have a law prohibiting discrimination on the basis of sexual orientation, as does Illinois. The photographer was fined not under a civil union law but under the anti-discrimination law. In other words, the potential for diminishing religious freedom already exists under current state and federal laws.

This is not a new problem, and policy-makers have generally allowed exemptions for religious institutions under anti-discrimination frameworks, but this does not exist for individuals engaging in activities where religion is only tangentially related to a person’s role or profession. For instance, if the photographer were an anti-Semite, he or she is still obligated to offer photography services for Jewish clients under state and federal anti-discrimination laws and subject to penalties for violation of the law, even if the bias had its foundation in theology. In a society that values both freedom and equality, this will always be a source of tension in law and policy. If anything, the proposed law in Illinois errs on the side of protecting religious freedom.

No good arguments are left for opposing civil unions, only those that are purely theological, and the public clearly supports extending civil protections and responsibilities to the tens of thousands of same-sex and unmarried couples who need these protections in Illinois.

Jason Pierceson is assistant professor of political studies and legal studies at the University of Illinois at Springfield and is author of the book, “Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada,” and is co-author of the forthcoming book, “Moral Argument, Religion, and Same-Sex Marriage: Advancing the Public Good.”