The New Jersey Star-Ledger reports that the NJ State Assembly has enough votes to pass a proposed same-sex marriage bill. The Assembly will officially vote on the bill on February 16, three days after the Senate takes up the bill. Governor Chris Christie has repeatedly promised to veto any same-sex marriage legislation and has instead urged a referendum on the issue.
As I noted in a previous post, exceptions for religious groups have been a prerequisite to the passing of same-sex marriage legislation in other states, most notably New Hampshire, Vermont and New York. These exceptions have focused on two areas. First, they allow clergy to refuse to solemnize same-sex marriages and prevent both state action (i.e. penalizing or withholding benefits) and individual causes of action resulting from such refusal. Second, these exceptions allow a religious organization, like Catholic Charities, to “tak[e] … action … calculated … to promote the religious principles for which it is established or maintained.” Arguably, this language would allow a foster care service, run by Catholic Charities, to refuse to place children with same-sex couples, a scenario that has become a kind of litmus test on the strength of religious exceptions to same-sex marriage laws.
With this in mind, it is surprising that there has not been more press coverage about the NJ law’s religious exceptions. Like the laws in NH, VT and NY, the NJ law would not require clergy to solemnize same-sex marriages. But beyond not solemnizing marriages, it is unclear how well the law would protect religious organizations. In regards to religious organizations, the Assembly bill reads:
No religious … organization in this State serving a particular faith or denomination shall be compelled to provide space, services, advantages, goods, or privileges related to the … promotion of marriage if such … promotion of marriage is in violation of the beliefs of such religious … organization.
This proposed language raises at least two difficult questions. First, it is unclear whether a group like Catholic Charities would even qualify as a protected entity. In one sense, Catholic Charities “serves” the Catholic Church by living out the Church’s beatific vision of the world. However, in a more concrete sense, Catholic Charities “serves” the community at large by providing foster care, regardless of denomination. Would this mean that Catholic Charities does not fall within the exception?
Second, assuming that Catholic Charities would qualify as a “religious organization,” it is unclear what “promotion of marriage” involves. It would presumably include a wedding ceremony, but would placing a foster child with a same-sex couple qualify as promoting that marriage? Would providing parenting classes for new parents, including married same-sex parents, qualify as promoting same-sex marriages? Would providing health insurance to the same-sex spouse of an employee qualify as promoting same-sex marriage? These questions reveal ambiguity in the statutory language that will likely only be resolved through litigation. When speaking of charitable organizations like Catholic Charities, the threat of costly litigation alone is enough to force them out of the social services market altogether.