Gay Rights, Religious Liberties: A Three-Act Story
Pavilion - The pavilion is an open-air building with long benches looking out to the Atlantic Ocean. It is owned by the Ocean Grove Camp Meeting Association. (Barbara Bradley Hagerty/NPR)
As gay couples in California head to the courthouse starting Monday to get legally married, there are signs of a coming storm. Two titanic legal principles are crashing on the steps of the church, synagogue and mosque: equal treatment for same-sex couples on the one hand, and the freedom to exercise religious beliefs on the other.
The collision that will play out over the next few years will be filled with pathos on both sides.
Act One: A Love Story
(Barbara Bradley Hagerty/NPR)
Harriet Bernstein, mother of two and grandmother of six, realized a few years ago that she was drawn to women. She lives in Ocean Grove, N.J., a quiet beach town known as "God's Square Mile," because the land is owned by a Methodist retreat center, formally known as Ocean Grove Camp Meeting Association.
Eight years ago, she went on a retreat with Jewish gay men and lesbians in the Poconos Mountains and met her future wife.
"I took a chance and went up for a weekend of cross-country skiing and ice skating," Bernstein recalls. "And I saw this lovely lady across a crowded room, as they say in South Pacific, and immediately decided she was somebody I wanted to get to know. And I did."
"We came together like magnets," Luisa Paster adds. "We had all our meals together. We went cross-country skiing. And we exchanged phone numbers at the end of the weekend."
Bernstein and Paster formalized their union last year, a few months after New Jersey legalized civil unions.
Bernstein fetches the wedding album and flips past photos of the rabbi, the cake (adorned with two brides), and various shots of the two outdoorsy, gray-haired women smiling as they stood on the boardwalk in their white tunics and pants.
(Barbara Bradley Hagerty/NPR)
Paster then reads the invitation to their civil union, emphasizing the ambiguous wording.
"Location to be announced," she reads. "That's because we had to send out the invitations before we had final word on whether we could use the pavilion."
Act Two: The Conflict
(Barbara Bradley Hagerty/NPR)
The pavilion in question is an open-air building with long benches looking out to the Atlantic Ocean. It is owned by the Ocean Grove Camp Meeting Association.
"A building very similar to this has been on this site since the late 1800s," says the Rev. Scott Hoffman, the group's administrator.
During the summers, Hoffman says, the pavilion is used for Bible studies, church services, gospel choir performances and, in the past at least, weddings. Heterosexual weddings.
When Bernstein and Paster asked to celebrate their civil union in the pavilion, the Methodist organization said they could marry on the boardwalk — anywhere but buildings used for religious purposes. In other words, not the pavilion. Hoffman says there was a theological principle at stake.
"The principle was a strongly held religious belief that a marriage is between a man and a woman," Hoffman says. "We're not casting any aspersions or making any judgments. It's just, that's where we stand, and we've always stood that way, and that's why we said no."
The refusal came as a shock to Bernstein, who says Ocean Grove has been revived by the gay community.
"We were crushed," she says. "I lived my whole live, fortunately, without having any overt prejudices or discrimination waged against me. So while I knew it was wrong, I never knew how it felt. And after this, I did know how that felt. It was extremely painful."
Luisa says that initially, they walked away from the situation. "We were so stunned, we didn't know what to do. But as we came out of our initial shocked stage, we began to get a little angry. We felt an injustice had been done," she says.
So the couple filed a complaint with New Jersey's Division of Civil Rights, alleging the Methodists unlawfully discriminated against them based on sexual orientation. Attorney Lawrence Lustberg represents them.
"Our law against discrimination does not allow [the group] to use those personal preferences, no matter how deeply held, and no matter — even if they're religiously based — as a grounds to discriminate," Lustberg says. "Religion shouldn't be about violating the law."
The Methodist organization responded that it was their property, and the First Amendment protects their right to practice their faith without government intrusion. But Lustberg countered that the pavilion is open to everyone — and therefore the group could no more refuse to accommodate the lesbians than a restaurant owner could refuse to serve a black man. That argument carried the day. The state revoked the organization's tax exemption for the pavilion area. Hoffman figures they will lose $20,000.
Now, with the help of the Alliance Defense Fund (ADF), a Christian legal firm, Hoffman is appealing the case to state court. He says religious freedom itself is in jeopardy.
"And that potentially affects every religious organization in America, not just Christian organizations, but every religious organization. And I get calls from Jewish rabbis who are equally concerned — people from across the spectrum who think it's a battle worth fighting. And we agree," Hoffman says.
Act Three: A Nationwide Story
As states have legalized same-sex partnerships, the rights of gay couples have consistently trumped the rights of religious groups. Marc Stern, general counsel for the American Jewish Congress, says that does not mean that a pastor can be sued for preaching against same-sex marriage. But, he says, that may be just about the only religious activity that will be protected.
"What if a church offers marriage counseling? Will they be able to say 'No, we're not going to help gay couples get along because it violates our religious principles to do so? What about summer camps? Will they be able to insist that gay couples not serve as staff because they're a bad example?" Stern asks.
Stern says if the early cases are any guide, the outlook is grim for religious groups.
A few cases: Yeshiva University was ordered to allow same-sex couples in its married dormitory. A Christian school has been sued for expelling two allegedly lesbian students. Catholic Charities abandoned its adoption service in Massachusetts after it was told to place children with same-sex couples. The same happened with a private company operating in California.
A psychologist in Mississippi who refused to counsel a lesbian couple lost her case, and legal experts believe that a doctor who refused to provide IVF services to a lesbian woman is about to lose his pending case before the California Supreme Court.
And then there's the case of a wedding photographer in Albuquerque, N.M.
On January 28, 2008, the New Mexico Human Rights Commission heard the case of Vanessa Willock v. Elane Photography.
Willock, in the midst of planning her wedding to her girlfriend, sent the photography company an e-mail request to shoot the commitment ceremony. Elaine Huguenin, who owns the company with her husband, replied: "We do not photograph same-sex weddings. But thanks for checking out our site! Have a great day!"
Willock filed a complaint, and at the hearing she explained how she felt.
"A variety of emotions," she said, holding back tears. "There was a shock and anger and fear. ... We were planning a very happy day for us, and we're being met with hatred. That's how it felt."
Willock declined to be interviewed, as did the owners of Elane Photography. At the hearing, Jonathan Huguenin said that when he and his wife formed the company two years ago, they made it company policy not to shoot same-sex ceremonies, because the ceremonies conflicted with their Christian beliefs.
"We wanted to make sure that everything we photographed — everything we used our artistic ability for, everything we told a story for or conveyed a message of — would be in line with our values and our beliefs," he said.
The defendants' attorney, Jordan Lorence at ADF, says that of course a Christian widget-maker cannot fire an employee because he's gay. But it's different when the company or a religious charity is being forced to endorse something they don't believe, he says.
"It's a very different situation when we're talking about promoting a message," Lorence says. "When it's 'We want to punish you for not helping us promote our message that same-sex marriage is OK,' that for me is a very different deal. It's compelled speech. You're using the arm of the government for punishing people for disagreeing with you."
In April, the state human rights commission found that Elane Photography was guilty of discrimination and must pay the Willock's more than $6,600 attorneys' fee bill. The photographers are appealing to state court.
In the meantime, they wonder whether all the hassle is worth it and whether they should get out of the photography business altogether.
Georgetown University professor Chai Feldblum says it is a compelling case of what happens in a moment of culture clash. Feldblum, who is an active proponent of gay rights, says the culture and state laws are shifting irrevocably to recognize same-sex unions. And while she knows it's hard for some to hear, she says companies and religious groups that serve the public need to recognize that their customers will be gay couples.
"They need to start thinking now, proactively, how they want to address that. Because I do think that if a gay couple ends up being told their wedding cannot be filmed, five couples will not sue, but the sixth couple will."
And as one legal expert puts it, the gay couples "would win in a walk."
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STEVE INSKEEP, host:
It's fair to assume that two women in their 80s will be happy today when they get married in California. They're among the first to legally be able to do so today, but there are signs of a coming storm.
On the steps of churches, synagogues and mosques, two legal principles will be colliding in the coming weeks, months and years. One is equal treatment for same-sex couples. The other is the freedom to exercise religious beliefs, and the first squalls are appearing in courtrooms across the country. NPR's Barbara Bradley Hagerty has the story in three acts.
BARBARA BRADLEY HAGERTY: Act One: The love story. Harriet Bernstein, mother of two, grandmother of six, realized a few years back that she was drawn to women. She moved to Ocean Grove, New Jersey, a quiet beach town known as God's Square Mile, because the land is owned by a Methodist retreat center. But Bernstein was lonely, and eight years ago, she went on a retreat with Jewish gay men and lesbians in the Poconos.
Mr. HARRIET BERNSTEIN: And I saw this lovely lady across a crowded room, as they say in "South Pacific," and immediately decided she was somebody I wanted to get to know.
Ms. LUISA PASTER: And we came together like magnets.
HAGERTY: Enter Luisa Paster.
Ms. PASTER: We had all our meals together. We went cross-country skiing, and we exchanged phone numbers at the end of the weekend.
HAGERTY: It was a winter romance. Bernstein was 64, Paster 59 when they decided to formalize their union last year, a few months after New Jersey legalized civil unions.
Ms. BERNSTEIN: Here's a close-up of the cake with the two brides.
Ms. PASTER: Oh, we had two bride candles.
HAGERTY: They pore over their wedding album. Then Paster turns to the invitation.
Ms. PASTER: Harriet Bernstein and Luisa R. Paster joyfully invite you to celebrate their civil union...
HAGERTY: But in the wording lurks an ambiguity that speaks volumes.
Ms. PASTER: Location to be announced - because we had to send out the invitations before we had final word on whether we could use the pavilion.
(Soundbite of crashing waves)
Rev. SCOTT HOFFMAN (Administrator, Ocean Grove Camp Meeting Association): We call this Boardwalk Pavilion, and it's a worship facility where we come to where the people are, on the boardwalk, and provide a witness, a Christian witness.
HAGERTY: That's Pastor Scott Hoffman, who ushers into Act Two: The Conflict. Hoffman is the administrator of Ocean Grove Camp Meeting Association. We're standing in an open-aired building with long benches, looking out to the Atlantic Ocean. During the summers, he says, the pavilion is used for Bible studies, church services, gospel choir performances and, in the past, weddings - heterosexual weddings. And it's here, in this pavilion, that two fundamental rights crashed like waves against a beach.
When Bernstein and Paster asked to celebrate their civil union in the pavilion, the Methodist organization said they could marry on the boardwalk, anywhere but buildings used for religious purposes - in other words, not the pavilion. Hoffman says there's a theological principle at stake.
Rev. HOFFMAN: The principle was a strongly held religious belief that marriage is between a man and a woman. We're not casting any aspersions or any judgment or making any judgments, it's just that's where we stand, and we've always stood that way, and that's why we said no.
Ms. BERNSTEIN: We were crushed.
HAGERTY: Harriet Bernstein says for the first time, she felt the sting of discrimination.
Ms. BERNSTEIN: It was extremely painful.
Ms. PASTER: Initially, we did walk away. We were so stunned, we didn't know what to do. As we came out of our initial shocked stage, we began to get a little angry.
HAGERTY: So the couple filed a complaint with New Jersey's Division of Civil Rights, saying the Methodists unlawfully discriminated against them based on sexual orientation. Their attorney, Lawrence Lustberg, says it's simple.
Mr. LAWRENCE LUSTBERG (Attorney): Religion shouldn't be about violating the law.
HAGERTY: The Methodists responded that it was their property, and the First Amendment protects their right to practice their faith without government intrusion. But Lustberg countered that the pavilion is open to everyone, and therefore the Methodists could no more refuse to accommodate the lesbians than a restaurant owner could refuse to serve a black man. That argument carried the day, and the church lost its tax exemption for the pavilion area. Pastor Hoffman is appealing the case, because he says religious freedom itself is in jeopardy.
Rev. HOFFMAN: That potentially affects every religious organization in America. You know, and I get calls from Jewish rabbis who are equally concerned, who, you know, think it's a battle worth fighting. And we agree.
HAGERTY: In Act Three, we pull back to reveal a nationwide story. As states have legalized same-sex partnerships, the rights of gay couples have consistently trumped the rights of religious groups.
Marc Stern is the general counsel for the American Jewish Congress. He says it doesn't mean that a pastor can be sued for preaching against same-sex marriage, but he says that may be just about the only religious activity that will be protected.
Mr. MARC STERN (General Counsel, American Jewish Congress): What if a church offers marriage counseling? Will they be able to say no, we're not going to help gay couples get along because it violates our religious principles to do so?
HAGERTY: Stern says the outlook is grim for religious groups. Parochial schools and universities, adoption providers, psychologists and doctors have all been sued for holding a traditional view of marriage. And then there is the case of a wedding photographer in Albuquerque, New Mexico.
Unidentified Woman: This hearing of the New Mexico Human Rights Commission will now come to order.
HAGERTY: January 28, 2008, a hearing in the case of Vanessa Willock v. Elane Photography. Willock, a lesbian, had sent the photography company an email request to shoot their commitment ceremony. The company wrote back, quote: We do not photograph same-sex weddings. But thanks for checking out our site. Willock filed a complaint. At the hearing, she explained how she felt.
Ms. VANESSA WILLOCK: There was a shock, and then there was, you know, an anger and fear.
HAGERTY: Willock declined to be interviewed, as did the owners of the company, Elane and Jonathan Huguenin. At the hearing, Jonathan Huguenin explained why he and his wife refused to shoot same-sex ceremonies.
Mr. JONATHAN HUGUENIN (Wedding Photographer): We just wanted to make sure that everything that we photographed, everything we used our artistic ability for, everything...
HAGERTY: Every message they conveyed, he said, was in line with their Christian values.
The photographers' attorney, Jordan Lorence at Alliance Defense Fund, says of course a Christian widget-maker cannot fire an employee because he's gay, but it's different, he says...
Mr. JORDAN LORENCE (Attorney, Alliance Defense Fund): When it's we want to punish you for not helping us promote our message that homosexual, same-sex marriage is okay - that to me is a very different deal. It's compelled speech. You're using the arm of the government to punish people for disagreeing with you.
HAGERTY: In April, the state human rights commission found Elane Photography guilty of discrimination and ordered the couple to pay Willock's attorneys' fees, some $6,600. The photographers are appealing to state court, and this case is just the beginning.
Professor CHAI FELDBLUM (Georgetown University): This to me is a compelling case of what happens in a moment of culture clash.
HAGERTY: Georgetown University law professor Chai Feldblum. She says the culture and state laws are shifting to recognize same-sex unions, and companies and religious groups need to be ready.
Ms. FELDBLUM: I do think that if a gay couple ends up being told their wedding cannot be filmed, five couples will not sue, but the sixth couple will.
HAGERTY: And as one conservative lawyer put it, the gay couples would win in a walk. Barbara Bradley Hagerty, NPR News.
(Soundbite of music)
INSKEEP: You can read about a dozen other cases involving religious liberty and equality. In order to find those cases, just go to npr.org. This is NPR News. Transcript provided by NPR, Copyright National Public Radio.
