[bane]

I think you have a fundamental misunderstanding of the difference between a secular and a religious "marriage". Religious institutions have always been allowed to marry or not marry as they see fit. Quite a few religions and religious factions have provide same-sex marriages long before it was ever explicitly allowed in law.

When most people get a regular 'ol marriage, it's actually two events. Their religious marriage, as recognized by their faith, and the civil "marriage" as defined and recognized by law. You can get one without the other if you wish. Just get a religious marriage, and don't bother with the legal licensing and registration, or conversely, just get a legal marriage and don't bother with the religious aspects of it. I can't say it's always been this way, but it's basically always been this way.

The problem comes from the simply face that there's a very large body of law that required people to enter into an agreement specifically called "marriage" for those laws to apply to them. More importantly SCOTUS has recognized "marriage" as a fundamental right.

In theory, same-sex couple always had the right to get married, legally and religiously (if their religion allowed), and should have had those laws apply to them. But it was only recently when same-sex couples tried to enforce the application of those laws on themselves that the legal hypocrisy became apparent and government attempted to separate those people from their legal right.

If law had used the word "quijibo" instead of "marriage" it wouldn't have mattered any. People could have gotten religiously married, then filed for their quijibo. The word choice is irrelevant, other than the legal inertia that's already behind the word.

[baddox]

> Religious institutions have always been allowed to marry or not marry as they see fit.

Correct me if I'm reading this wrong [0], but it seem that a New Jersey court ruled in 2012 that a religious facility could not deny usage to homosexual couple for civil union ceremonies. From my quick Googling, it seems this is a big concern for Christian groups in the US, but I don't know how credible their concern is.

[0] http://www.adfmedia.org/files/OGCMA-BernsteinRuling.pdf

Edit: with a bit more Googling, it seems fairly common for state governments to prohibit discriminating based on sexual orientation for the sale of goods and services, which would (I assume) apply to churches being used for ceremonies. There have also been court cases involving wedding cakes, flowers, and photography.

http://abcnews.go.com/US/judge-orders-colorado-bakery-cater-...

http://www.huffingtonpost.com/2013/06/28/gay-wedding-flowers...

Proposed city law in Kansas: http://www.hutchgov.com/egov/docs/1332537777_170654.pdf

http://www.huffingtonpost.com/2008/12/30/nj-rules-against-ch...

[bane]

It is a major fear for religious groups that belong to a religion that won't recognize/perform same-sex marriages.

But it won't likely happen (or won't be upheld on challenges up to SCOTUS if it does happen at a local level). Religious freedom includes religions that sometimes hold beliefs that may not be popular.

For example, most Zoroastrian organizations forbid conversion to Zoroastrianism and won't permit marriages to outsiders. However, it's highly unlikely a law would be passed stopping this kind of ethnic discrimination. Many Christian preachers go on about the evils of paganism, but outlawing speech against Wicca or Hinduism or whatever is unlikely to happen as would a law forcing believers in those religions to convert to an acceptable non-Pagan religion.

> which would (I assume) apply to churches being used for ceremonies.

Churches or other houses of worship have a special protected status different from that of businesses. They're kind of like a private club. They aren't free from all laws, human sacrifice is not permitted for example.

More importantly, people are free to leave and join other religions as they see fit (or no religion), or spin out their own sect that allows for whatever they want as they wish.

This was seen as important enough that it's actually the first part of the first amendment, before speech, press and assembly.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It'd be very hard to pass such a law and not have it run afoul of this.

[baddox]

Then how do you explain the links I posted in that comment? Do you think those rulings are only in place because the Supreme Court hasn't been involved yet?

I'm not so sure that the Supreme Court would rule that churches can refuse to offer a service due to someone's sexual orientation. They have obviously ruled that private businesses and organizations cannot discriminate based on race (as well as several other attributes).

[bane]

Yes. They are likely in place because it hasn't

a) filtered up to SCOTUS

b) been accepted as a case by SCOTUS.

Business and religious organizations are significantly different kinds of recognized organizations in the U.S. It's not correct to try and draw a parallel between them. Just like it's not correct to draw a parallel between U.S. criminal law and the UCMJ.

In your last example (http://www.huffingtonpost.com/2008/12/30/nj-rules-against-ch...) it's possible the ruling will stand since the church was running a business outside of its normal religious functions. Here's the actual ruling http://www.aclu-nj.org/files/8713/2639/9826/CRT_6145-09_Bern...

In this case, the property was held by the Ocean Grove Camp Meeting Association. Not a church. However, majority ownership in the association is held by the United Methodist Church. Board members must be members or clergy in UMC. Meaning they formed the association as an organization outside of the Church and thus is required to follow the laws any other owned organization must follow...including non-discrimination.

This would be analogous to a church buying a McDonald's franchise and then claiming they can not hire minorities or women because of some religious tenant.

UMC owns a large number of businesses and properties that it leases for business or residential use. As a matter of fact, a better analogy is UMC might form a non-profit company that owns a low-rent apartment complex (as a social outreach program) and only allow low-income people to live there. But then deny an application based purely on somebody being gay. Or property that a restaurant leases and then demands the restaurant not serve gay patrons.

In this case the

In this case the Ocean Grove Camp Meeting Association owned about a square mile of beach front property that it used for both religious services (my guess would be with a fee paid to the Association by UMC) and rented out for various functions including weddings. It'd be no different than an owner of a large function hall renting it out for weddings 6 days a week and for church service on Sundays (which is actually quite common).

The Association then sought private organization (not religious) tax-exemption as part of a nature preservation agreement. A legal requirement under this exemption is that property be available for public use on an equal basis.

You can see where this is going and the rest of the opinion is good reading to help flesh out the story. It's relatively clear cut, and doesn't infringe in any way on the UMC to exercise their religious beliefs. In fact the UMC's defense was an effort to push out their religious beliefs into the public sphere in clear violation of the law. A law that, BTW makes clear exceptions for religious organizations and their practices -- even if discriminatory.

[pessimizer]

It's become a big issue in Britain - but that's mostly because they have a state church. It's certainly not outside of the realm of possibility, but I've heard of mixed race marriage ceremonies being explicitly denied by churches in the US, and don't ever remember any recourse that the couples had other than the court of public opinion.

[bane]

Well they always had a recourse. Get married someplace else. Go to a different church, or if your sect forbids it, get to a different sect, and if your religion forbids it, make your own sect, and if that's too much work, just get a civil marriage.

I know it's not quite that simple, people get very hung up on where they spend their Fridays, Saturdays or Sundays, but people usually have options of some sort.

[baddox]

Sure, but one could say the same for "whites only" businesses in the American south. African Americans could just eat, fill up their gas tanks, buy clothes, etc. "someplace else." The Civil Rights Acts makes it clear that the people (or at least the government) does not endorse that form of self-determination.

[bane]

Except that religious tolerance, including tolerance for religious organization's religiously grounded specific discrimination stances, is specifically enshrined in the Constitution. Businesses have no similar or even remotely analogous protection.

Drawing an analogy between an organized religious organization like a Church and a business like a restaurant is a fundamental misunderstanding of the law. This specific dividing line has been held up over and over again in cases where religious organizations incorporate a business entity, and then wish to push particular discrimination policies specific to their practices into that business.

A White Supremacist church is free to be discriminatory, but the bakery it owns and runs as a separate business entity is not for example.

However, IIR, a religiously owned organization, like a corporation, may choose to discriminate based on religion. So the White Supremacist Church's bakery, let's say it's Lutheran, may choose not to hire non-Lutherans at its bakery. This was actually held up by SCOTUS in a 1987 decision for a Mormon church owned corporation.

edit http://www.ecfa.org/Content/TopicReligiousDiscrim