Interview with Scott Walter

Family North Carolina Magazine—March/April 2009

On Air With . . .
Scott Walter is executive director of The Beckett Fund for Religious Liberty, a public interest law firm based in Washington, D.C. that is dedicated to protecting the free expression of all religious traditions. He formerly served as special assistant to the President for domestic policy, where he helped craft White House policy on Head Start, faith-based initiatives and education issues. Prior to this, he served as senior editor of American Enterprise magazine, and managing editor of Crisis magazine, as well as a researcher at the American Enterprise Institute.

The following is an edited transcript of an interview with Scott Walter conducted by Bill Brooks, president of the North Carolina Family Policy Council (NCFPC). An edited version of this interview aired in December 2008 on the Council’s weekly radio program, “Family Policy Matters.” Scott discussed a recent report from The Beckett Fund that examined the religious liberty implications of same-sex marriage. He specifically focused on how same-sex marriage would impact religious freedom in states with anti-discrimination laws.

This interview can be heard in its entirety here: Listen (.mp3) — (Real)

Bill Brooks: Tell us about the study—what specific state laws were examined, and why?

Scott Walter: We looked at all 50 states, and we checked their anti-discrimination laws, which involved gender, marital status and sexual orientation. And what we found after examining over a 1000 laws like that across the country is that there were more than 350 separate anti-discrimination provisions that would likely be triggered, if same-sex marriage were granted legal recognition. For instance, public accommodations—let’s say a couple runs a bed and breakfast in their home, and they decide that they don’t want to host unmarried couples or same-sex couples, they would, in many states, be likely to be sued under laws against discrimination on the basis of marital status. Another example would be employment laws. [For example], a church secretary enjoys a same-sex marriage and demands that her or her spouse has the same employment benefits as other spouses. Then the church would almost certainly be sued if it failed to provide that. And there are many, many others. You know, housing, for instance. Notre Dame has married student housing. Well, if it doesn’t recognize all marriages in eligibility for student housing, it too would likely be libel to lawsuits under state anti-discrimination laws.

BB: Now, what is it that would trigger these anti-discrimination laws under the scenarios that you just outlined? Because that currently wouldn’t be the case in North Carolina, would it?

SW: Well, presumably it would not be, although even then it’s complicated because there are a handful of states now that legally recognize same sex marriage, and if a couple is married in those states and then moves to North Carolina, it is at least arguable—and it’s hard to say where the courts would come out necessarily—but it’s certainly arguable that a North Carolina judge might say that whether or not they could have contracted a marriage in this state, we have to recognize the marriage they contracted in another state, and therefore we are going to apply these various anti-discrimination laws in their favor.

BB: So, now, do you think that would override a [Defense of Marriage Act]? North Carolina has what we are told is a very strong DOMA that says that we do not recognize marriage except between a man and a woman, or any other same-sex marriage that is performed in another state, or which appears to look like that kind of relationship.

SW: Well, you can never be quite certain where the judges will come down on this. There have been very few test cases so far with state DOMAs or the federal DOMA, either one, and it’s not at all clear. The almost certain thing is that there will be lots more of those in the years to come, and we’ll have to see how they shake out. But what I would say is that [it] certainly would be foolish to presume that a state DOMA is going to be sufficient for that.

BB: What was the overall finding of your study? If same-sex marriage is legalized, could anti-discrimination laws be used against individuals who object to the practice?

SW: Absolutely. And in fact, there are already beginning to be cases like that. [For example], a particularly famous case of two Christian photographers in New Mexico— which, by the way, does not itself recognize same-sex marriage—but when a lesbian couple asked the photographers to photograph their commitment ceremony, the photographers politely declined and were sued under human rights statutes in New Mexico. Now, the case is still pending. That is to say, it’s moving its way through the system. But at the first level, the photographers were fine.

BB: Scott, as you mentioned earlier, the study focused on three specific anti-discrimination laws, including laws that prohibit discrimination on the basis of sexual orientation. How many states have such laws and what did the study find regarding these specific laws?

SW: Well, the answer is, roughly speaking, half…. Every state has statutes prohibiting discrimination on the basis of gender, which is a basis that’s often been used so far in trying to have the courts recognize same-sex marriages. Now, there’s another aspect of this too, which is that in the case of sexual orientation laws, they often have at least some degree of conscience clauses built into them, precisely to respect religious believers and religious institutions. That’s the sexual orientation laws. But laws prohibiting discrimination on the basis of marital status and gender are far less likely to have significant conscience clause exceptions for religious believers.

BB: What about state laws banning discrimination on the basis of gender, such as North Carolina? What kind of impact could these laws have on religious liberty if same-sex marriage were legalized?

SW: Well, it has often been the case that those who seek to have the courts declare legal recognition for same-sex marriage have used a legal argument that it is a matter of gender discrimination. If it’s possible for me to marry a woman, then, if you forbid me to marry a man, then you’ve discriminated against that man because he’s a man. And that’s been the legal theory advanced, and under those circumstances, one could see same-sex marriage appearing in many states, if that theory is accepted by the courts. And in that case, as I said, once the same-sex marriage is legally recognized, you then have all the other laws coming in behind it. Namely, that means, that in hiring your church secretary, in renting out your accommodations, in granting insurance benefits, or housing benefits, and all the rest, that all those things would then become issues that could be the source of lawsuits, against, not only actual churches but [also] a church school, a church charity and the rest.

BB: What about state laws banning discrimination on the basis of marital status?

SW: Well, again, almost all the laws about marital status, and the laws about gender, were written by legislators some years ago, who never dreamt of the scenario that we’re discussing. And so, one of the things that Beckett Fund has long urged in this area is precisely that given that changing the definition of marriage in the law is not a single change but in fact a vastly multiple change in all these other areas, it would seem highly unwise for courts to try to make such a change because by changing the nature of marriage, they’d be changing all these other laws that were never written with such ideas in mind. And if anyone is going to try to argue for same-sex marriage, he should be arguing for legislatures to try to grapple with this issue …precisely because the legislative process would make it possible to consider all these other aspects of the problem. And at the very least, our view is that there should be very robust exemptions to these laws for religious believers and religious organizations, so that they’re not forced to violate their conscience.

BB: Can you give us some other specific examples of how anti-discrimination statutes might be used against religious individuals and institutions?

SW: Well, as I said, there’s the New Mexico case: simply two private photographers, who declined to photograph a lesbian commitment ceremony and who were sued under human rights statutes. And then there are many para church organizations, like the Knights of Columbus, for instance, who have a large number of halls around the country, which they rent out for various functions to private individuals. And their ability to choose which persons would be able to rent those would easily be under attack. The ability for a religious ministry or charity to choose the people that it hires would also easily be at risk.

BB: And I guess that would extend to someone also who was renting an apartment or even a room in their home, and they had two guys show up and say, “Oh, we’re homosexual.” And they say, “Well, we don’t believe in that; it’s against our religious practice, and therefore, we can’t rent you that room.” That would be a clear case for a lawsuit, right?

SW: Certainly. You know, someone running a Bed and Breakfast, or someone running a small apartment building…. The clearest thing is the hiring of directly ministerial employees in an actual church or its equivalent. That’s reasonably, strongly defended in the law. But once you get to the church’s secretary, the secretarial position is less protected, and then if you move to the so-called para-church entities, like, let’s say the Knights of Columbus, which is a Catholic fraternal organization, or Worldvision, which is a Protestant international charity, then the assumption is the protection is considerably, less strong. And then when you move all the way to simply individual religious believers who happen to be business people, it’s at its weakest yet...And the thing is, you know, in advocating this, we’re following a very impressive tradition of the country for hundreds of years. The very first conscientious objection laws in fact were written for Quakers to protect a small religious minority that was pacifist. And so in the law the original conscience clauses protected religious pacifists from being forced to bear arms. And I think that’s actually one of the more noble moments in our nation’s great history of religious liberty. Now, you’re more likely to see it in conscience clause exemptions in health care… And our argument is simply that this is another area where the conscience of religious believers should be respected by the law.

BB: What is scary here is that most of these anti-discrimination laws—with the exception of the sexual orientation laws—were never intended to be used to target religious liberties. Is that correct?

SW: Exactly. And conversely, as I said, in the case of the sexual orientation laws, because people recognized there would be conflicts like this, in most cases, at least some protection for religious liberty has already been written in, because it was easily foreseeable that there would be conflicts. And so legislators wished to try to avoid that. And at the very least, it seems perfectly reasonable to say that the same should be done in the case of marriage laws.

BB: You’ve talked a little bit about this already, but many of the anti-discrimination laws we’ve been discussing have religious exemptions built into them. Are these exceptions strong enough to protect the rights of religious individuals who oppose same-sex marriage?

SW: Well, it’s difficult to generalize across 50 states, but the short answer would be that probably not … as things currently exist. Precisely because when those marital status and gender anti-discrimination laws were being written, no one saw the conflicts that were coming. And we’ve actually published an entire book on this with legal scholars who both oppose and support same-sex marriage weighing in with their view. Essentially, that was our main question to them, “What are we to make about the very likely conflicts with religious liberty?” And all of them—whether or not they were entirely opposed or entirely in favor of same-sex marriage, as a public policy—all of them unanimously agreed that there would be very serious conflicts that would arise, given the legal landscape that we currently have with these laws.

BB: The key finding from this study that stands out for me is that the legalization of same-sex marriage poses a significant threat to religious freedom in this country. Why don’t we hear more about this threat in the debate over marriage?

SW: Well, of course, that would be something best asked of the mainstream media, I suppose. I will say that we, of course, have filed briefs in many of the cases involved here and the courts … have at least taken some small notice of that, but they have tended to be dismissive and refuse to face the very real conflicts that loom in front of us.