Notes on the Amended Same-Sex Marriage Bill Headed to the Senate Floor

1. Justin posted the three new subsections of proposed law regarding the “protection of freedom of religion in marriage” added to the same-sex marriage bill that passed the Rhode Island Senate Judiciary Committee last night. The new additions, inelegant though they may be, do make clear that 1) “protections for religious freedom” extend beyond just houses of worship and “licensed clergy” — acknowledging a wide variety of religious organizations  active in society — and 2) that religious organizations, broadly defined, cannot be forced to participate in either solemnization or celebration of marriages or the promotion of marriages that violate their beliefs. Additional mind-numbing legalese also makes clear that certain “fraternal benefit societies” are covered under the law.

If passed into law, the current bill will place the scope of Rhode Island’s religious freedom provisions at roughly the same level as the laws in most other states that have authorized SSM by statute; the reference to the “promotion” of marriage actually goes beyond what’s explicitly mentioned in Vermont or Connecticut.


2. The original version of the same-sex marriage referendum bill also would have allowed owners of small businesses to not participate in the solemnization or celebration of a marriage, if doing so would “violate the small business owner’s religious beliefs”. This was amended out before the referendum bill was voted on (and defeated) by the committee. Explicit mention of small business is not mirrored in the SSM laws of any other state.

This is an issue that will likely be working its way through the courts over the next several years. The immediate case to watch is Elane Photography v. Willock, currently in the New Mexico state court system, concerning a photographer who refused to take pictures at a same-sex commitment ceremony. In a broader context, the question is whether businesses are ever allowed to say no to someone who is willing to pay for their services. Not to wander too far afield here, but Rhode Island may be dealing with another aspect of this question, if the Freedom from Religion Foundation pursues its lawsuit against the florist who refused to make a delivery to Jessica Ahlquist during the Cranston West Banner controversy.


3. The protection of freedom of religion in the SSM bill headed to the Senate floor does retain one major defect — it still contains a clause dictating to “religious institutions” what they must do to retain “exclusive control” of their religious teachings. No other state’s SSM law contains anything like this.

Given the thicker set of protections for religious freedom apparently accepted by SSM advocates, it is safe to say that this is not part of some nefarious plot, but instead an example of the poor legislative drafting not unheard of in Rhode Island, e.g. about two weeks ago, in an opinion involving Rhode Island’s recently passed medical marijuana law, the State Supreme Court stated that “we agree with the trial justice that the Act…itself is poorly drafted” (h/t Jon Pincince). It is not unreasonable to suggest that Rhode Island Senators and Representatives can become so excited about the opportunity to put the pedal to the metal on matters of left-wing social policy, they throw caution and thought to the wind.

Still, the fact remains that the state which traces its lineage to Roger Williams is about write into its civil law conditions on what churches may teach. The lesson to take away is that, no matter how often our current political leadership invokes the name and the legacy of Roger Williams, they don’t really understand what that legacy is.

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