Washington’s gay marriage bill: a frontal attack on religious freedom

The gay marriage bill in the Washington State Legislature specifically claims to protect religious freedom. HB 2516/SB 6239 bills itself as:

AN ACT Relating to providing equal protection for all families in Washington by creating equality in civil marriage and changing the domestic partnership laws, while protecting religious freedom. . . . [Emphasis mine]

But, as always, the devil is in the details.

three-column stained glass window of the

CCL Danie Van der Merwe

Section 4 (2) of the proposed legislation says that:

No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any church or religious denomination is required to solemnize any marriage.

Sounds good, right? The Section goes on to say that:

A refusal to solemnize any marriage under this section by a regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any church or religious denomination does not create a civil claim or cause of action. . . .

It doesn’t create a civil claim or cause of action. A civil claim is when one private person (or group of people) sues another private person or group. Notice that the Section is silent on whether a refusal might create any other kind of legal claim.

Now let’s go to Section 7:

(1) Consistent with the law against discrimination, chapter 49.60 RCW, no religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage unless the organization offers admission, occupancy, or use of those accommodations or facilities to the public for a fee, or offers those advantages, privileges, services, or goods to the public for sale. [Emphasis mine]


(2) A refusal by any religious organization to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage does not create a civil claim or cause of action unless the organization offers those accommodations, facilities, advantages, privileges, services, or goods to the public in transactions governed by law against discrimination, chapter 49.60 RCW. [Emphasis mine]

Sounds pretty innocuous, but remember: The devil is in the details.

That little word unless in paragraph (1) is a hole big enough to drive a Mack truck through. Most churches have some procedure whereby at least some people who aren’t parishioners can rent their building and hold a wedding in it. Many churches hold occasional fundraisers on church property. All those churches could be sued under that one “unless.”

But that’s small potatoes compared to the opening clause, which brings all churches in the state for the first time under the purview of Chapter 60 (which deals with the State Human Rights Commission) of Title 49 (Labor Regulations) of the Revised Code of Washington. That’s important, because the Human Rights Commission (HRC)  doesn’t function in the civil law arena. It functions in the arena of public and administrative law. According to the HRC website,

If the Commission finds that there is reasonable cause to believe discrimination occurred, we will seek conciliation of the complaint. Appropriate remedies in the conciliation process may include back pay, reinstatement, rent refunds, or training to eliminate the unfair practice. If conciliation fails, the complaint may be turned over to the Attorney General’s office for hearing before an Administrative Law Judge.

So. There’s no ground for a civil claim unless the church offers its facilities, services, etc. to the public in situations over which the HRC has jurisdiction. And the HRC just happens to have jurisdiction over, let’s see, anything having to do with employment (of more than eight people), housing, real estate, places of public assembly, credit and insurance.

Can you think of a church with no connection to any of those things?

Me neither.

The religious freedom the bill claims to give with one hand, it quietly and completely takes away with the other.

Now. Let’s go back to the ministers, priests, imams and rabbis. If one of them refuses to solemnize a marriage, it doesn’t create a civil claim or cause of action.


But, just as with the churches, this bill leaves the door wide open for the pastor to be pursued by the Human Rights Commission and the Attorney General. Sure, the next step after the HRC would be the relatively low-level Administrative Law Judge (ALJ)–where, by the way, evidentiary standards are relaxed–but an appeal of an ALJ case goes straight into the mainstream Superior Court system. Bam.

Not only do many pastors refuse as a matter of conscience to marry gay couples. Many also refuse as a matter of conscience to marry couples where one party has been divorced, where one party is of a different faith than the other, and so on.This would leave no conscience clause in any of those cases.

Follow the money. This law would force pastors, rabbis, imams, churches, synagogues and mosques to choose between marrying couples they don’t in good conscience believe their God permits them to marry, or being taken to court and bankrupted.

The couple in question, of course, can always go find another place and another officiant. The pastor and the church, though, have no such easy way out.

So much for protecting religious freedom.

This is only one of a number of problems with this bill. I’ll be posting more about it soon. In the meantime, please consider sharing this with everyone you know who loves the First Amendment and values religious freedom.


21 thoughts on “Washington’s gay marriage bill: a frontal attack on religious freedom

  1. Musing here……..what if pastors, rabbis and churches just had a ‘waiting list’ and put names of gay couples on the list—–and never called them?

  2. Thanks, Brock.

    Thank you.

    pastors, rabbis and churches just had a ‘waiting list’ and put names of gay couples on the list—–and never called them

    That’s a thought.:)

  3. So am I to understand that if the language of the proposed law were to address the issues of pastors, etc., and churches, etc. from having any legal action taken against them for not marrying same-sex couples, you would then have no problem with the bill? You then would have no problem with gay marriage in Washington, or even the nation?

    • No, that’s where the first sentence of the final (bolded) paragraph comes in: “This is only one of a number of problems with this bill.” Also please see the second sentence of that paragraph: “I’ll be posting more about it soon.” Hope this helps.

      • That is where I thought you might be headed. As a gay man with a partner for 12 years I want to be married and have all the rights afforded to you and your spouse. There are over 1000 rights…and I can supply them to you if you wish…that are denied to my relationship that only marriage allows for. I might ask what legal actions resulted when our nation moved away from shunning Interracial marriage? Might not this movement for gay marriage have merit, and straw arguements are being used to side-track it. Finally have you thought about how Britain’s coalition government found it good sense to aim for legalized same-sex “marriage” before the next federal election which is to be held in 2015? I really look forward to a discussion of these matters as they relate to your attempt to use a pastors and churches as a reason to stop marriage. I attend a Luthern Chruch and they welcome gay couples and I know feel that marriage should be an opening and accepting process, and use the Bible to support their views. Sorry for ther long response but there are many issues to be dealt with in regards to your post.

        • Hi, Gregory–I’m looking forward to talking with you as well.

          >>I might ask what legal actions resulted when our nation moved away from shunning Interracial marriage?

          I don’t think Loving v. Virginia (the 1967 Supreme Court case legalizing interracial marriage) is a particularly apt comparison here. The language of this bill says something quite different from the holding in Loving, so the results are going to be quite different. Loving allowed interracial couples to marry; it didn’t penalize officiants or religious organizations for declining to assist. HB 2516 does force officiants and religious organizations to violate their consciences or face penalties of the HRC and judgments in the mainstream court system. The fact that, in fifty years, the descendants of two cocker spaniels have always been cocker spaniels–while true!–really isn’t relevant to a discussion of what I’m going to get when I breed two Siamese cats.

          I’m a little puzzled, though, as to why you call my argument about religious freedom a straw argument. Can we talk about the issues here that are important to *both* of us? Because freedom of religion is very dear to me. Not just freedom for me to practice my faith, but the idea of America as a place where each person is free to practice her or his faith. If you want to refute my argument, you need to do it on the merits, in the language of the statute, not by just dismissing it (and me) with a pejorative label.

          Do you live in Washington State? The reason I’m asking is, if you do, I’m wondering what rights you and your partner will gain under the gay marriage bill that you don’t currently possess under the domestic partnership law.

          • Thanks for wanting to dialogue over this matter.

            There were, and sadly still are, churches that do not marry interracial couples. News just sometime before Christmas from the Gulnare Freewill Baptist Church of Kentucky comes to mind where an actual vote took place to reject black couples from even attending their church. Bob Jones University in South Carolina strongly promotes against interracial marriages, and is affiliated with many churches that agree.

            I also brought interracial marriage up as for a far too long period of time marriage of an interracial couple was not necessarily honored in every other state in the nation. We can agree that was outdated thinking for interracial couples, but I have to ask why is it proper for it to now occur for gay couples?

            Legal scholars, it might be noted, have strong positions that run counter to what you have purported to be the truth about this bill. It is my understanding after two phone calls that there is no true concern about the religious questions you raised. I would ask that you make contact with the legislative reference office at the Capitol and either confirm your positions, or gain more background to better see the bill as it is written.

            I used the ‘straw argument’ term as I feel that you are not opposed to this bill only for the religious questions you raised. I infer from your writing that you are opposed to gay marriage, period. If you were really opposed for the stated reasons of your post you would make every attempt to gather all the information, and I think you did not do that as there is no way you could have arrived at your conclusions with all the facts.

            I am very involved with hisotry so will answer your last question in this way. I will use a quote from Hannah Arendt who was a a German American political theorist, She wrote in 1959 that “the right to marry whoever one wishes is an elementary human right … Even political rights, like the right to vote, and nearly all other rights enumerated in the Constitution, are secondary to the inalienable human rights to ‘life, liberty and the pursuit of happiness’ proclaimed in the Declaration of Independence; and to this category the right to home and marriage unquestionably belongs.”

            That is how I feel and I would hope all who value the Constitution would feel the same.

            The status of my relationship and others should not be divived over a term. All should be be recognzied as equal in law and terminlolgy. And in time they will be, nationwide.

            Again, thanks for the dialouge.

          • BJU repudiated their policy against interracial dating over a decade ago–and that’s a good thing.

            I was quite upfront in my post that this is the first in a series of posts about problems with the bill. So that’s not just a feeling on your part: That’s something I told you upfront, and repeated in my last comment to you.

            That hardly makes my first point a straw argument. I actually do put quite a bit of time into researching my posts. If you think there’s no way I could have arrived at my conclusions with all the facts, then you need to share those additional facts that you have with me. Otherwise it’s going to be hard for us to have a conversation on the subject.

            I say, “Look, there are freedom of religion problems here,” and the commenters who say they disagree with me (but haven’t given any reasons) keep borrowing a move from Vizzini in The Princess Bride: “What in the world can that be?”

  4. Terrible interpretation of the law. I suggest seeking a lawyers advice before putting more erroneous information up. Your conclusions are all wrong and you on several occasions try, and fail, to make the correct interpretations.

    • My post is based on a close reading of the bill. Your response, on the other hand, is based on name-calling, with no specifics. That makes it difficult to respond to.

      • I think the point that Dave is making is a valid one. Unless you are a lawyer, CBC?

        And what name calling? DOODOO FACE!!


        • No, I’m not a lawyer, but I have a legal education. I went to law school but took a leave of absence to take care of my parents, who were both very ill. By the time they both died, I had exceeded the leave of absence, and would’ve had to start over. Life often intervenes in such matters, and so far I haven’t.

          But you’re a perfectly smart guy, GG. I’m surprised and not a little puzzled that you’re willing to hand over your understanding of current affairs to The Experts and Self-Appointed Guardians of Your Best Interests! The little sound bytes that are in campaign literature and newspaper op-eds–yes, even the ones written by those lawyers you look up to!–regarding proposed legislation are invariably so brief as to give very little feel for the real lay of the land. That’s why I gave longer excerpts as well as links to the texts of the bills themselves: so that you could read it, and think about it, for yourself!

          The bill is in English, it’s less than eight pages long, and there aren’t any big words. You can call the Office of Administrative Hearings in Olympia, same as I did, to verify where cases go on appeal from the ALJ. You don’t seem like the sort of guy who would be a stranger to a close reading, or to following a chain of logical thinking. Go for it!

          • Dear DOODOO FACE,

            I never simply believe what is said in campaign ads…Does anyone?

            The point I am making, and I think Dave as well is that Law is not as easy to interpret as one might think. There may be other laws that come into play on the issue. What about the right to refuse service?
            As far as I can tell, the law is not at all an assult on freedom of religin. Then again, I am not a lawyer. If I am intrupreting it correctly the law is saying: If you offer your church building as a fee for service to couples getting married, you cannot discriminate againced the public based on their sexual oreintation.
            I have no issue with that, then again I am also not religious.
            This would not seem to impead in any way a churches ability to gather and worishp whatever God or follow whatever religin they want, when they want, tax free.
            As soon as a church offers their building or services to the public for a fee, they cannot discriminate. Solution: Don’t offer your services to the public, just offer them to your following.
            It goes the same for any other business, why should a church get special treatment? The 7-11 down the street can’t refuse service to me based a few protected things I.E. Gender, race, sexual oreintation, ect.

            Even with all that, I am sure some hot-shot lawyer could make a case that says a church should be able to discriminate againced gays because it’s bad for their business to cater to gays or something like that…again, not lawyer.

            Bottom line: I think the idea that this law is a full assult on religious freedoms is an unreasonable argument.


          • Dear GG,

            I’m not running a Kindergarten here. Potty jokes may pass for sophisticated humor where you come from. Here you need to act like an adult, and a courteous and considerate one at that. I assumed you’d had some sort of verbal toilet training accident in your last comment and gave you a pass. This time I’m giving you a warning. Next time I’ll delete your comment. Treat other people (including me) with compassion and courtesy, accord them their human dignity, or take your marbles and go home.


          • And please don’t put words into my mouth. I did not make the statement that I am “…willing to hand over your (my) understanding of current affairs to The Experts and Self-Appointed Guardians of Your Best Interests!”

  5. When Vancouver adopted a local HRC, the people responded by petition, then a vote to repeal the talk police. Religious liberty to speak about faith tenets would have been under the watchful eye of the HRC, who held the power to set a punishment for non-compliance. True freedom of faith to assemble, worship, and participate in sacred services should be maintained.

  6. Thank you for writing about this very important issue! I don’t hate those of different lifestyles although I disagree with their choices. But what bothers me is that THEIR lifestyle will destroy my right to discriminate against their lifestyle.

    • Good point, Josephine, and one that, sadly, probably needs to be made explicitly in our climate of uncivil and just plain mean discourse. Thanks!

      For the record: I’m arguing against ideas here, not attacking (or even disliking) people.

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