POLITICS

Could pastors really be jailed for preaching against gays?

By Jon Murray
jon.murray@indystar.com

An Indiana group is making dire predictions if the state doesn’t pass a constitutional amendment banning same-sex marriage.

Advance America, in a Sunday bulletin insert offered to churches, lays out what its leaders see as dangers ahead:

>> Authorities jailing pastors for preaching against homosexuality.

>> Cross-dressing men violating women’s privacy in their restrooms.

>> Government forcing business owners to cater to same-sex weddings.

>> Schools teaching children that gay marriage is normal.

The flier, put out this fall, argues that the items are “Just Four Dangers of Same-Sex Marriage” that could be on the horizon if Indiana fails to safeguard its traditional marriage definition, which already is contained in state law. (View the flier here.)

But Jennifer Drobac, a family law professor at Indiana University’s McKinney School of Law, was blunt in her assessment that Advance America’s flier makes claims with little basis in reality.

“This is just ludicrous,” she said. “This is just promulgating panic — and misinformed panic.”

Advance America, led by fundamentalist Christian activist Eric Miller, is among several religious-based organizations fighting at the grass roots to urge Indiana legislators to approve the proposed marriage amendment early next year. It then would go to voters on the November 2014 ballot.

Legal experts and gay-rights activists accuse Advance America of seizing on isolated examples from other states or misconceptions to strike fear into church-goers.

Freedom Indiana, the coalition working to defeat the amendment, says Advance America’s flier is full of “scare tactics.”

One of Advance America’s claims is based on a fierce legal debate in other states. Business owners such as florists and caterers have faced sanctions in some places — especially those that also ban discrimination based on sexual orientation — if they refuse to participate in same-sex weddings. But Indiana’s discrimination law doesn’t include protections based on sexual orientation.

As for the flier’s other claims, PolitiFact and other nonpartisan organizations have disputed their veracity when raised by gay marriage opponents in other states that have debated the issue.

Several attempts to reach Miller, Advance America’s founder and executive director, were not successful. It also was unclear how many churches have made use of the insert in their bulletins.

Advance America says it has more than 3,700 member churches statewide. Among them are many Assemblies of God churches, but Indiana District Superintendent Don Gifford wasn’t sure how many congregations had used the flier.

Curt Smith, president of the Indiana Family Institute, says Advance America’s flier makes reasonable claims about potential harms to religious freedom that could result if the state’s existing gay marriage ban is overturned.

“The issues and the ideas that are presented are fair,” Smith, who also is working to pass the amendment, said after reviewing the flier. “They are the logical consequences of this kind of policy.”

He added the caveat that, in Indiana, defeat of the marriage amendment wouldn’t necessarily mean Hoosiers would embrace the legalization of gay marriage right away.

Disagreement over Advance America’s flier is the latest spat over claims made by either side in the marriage amendment debate.

For their part, Smith and other supporters long have accused opponents of exaggerating the potential fallout of the amendment’s second sentence. It would bar state recognition of other arrangements, including civil unions, that are “identical or substantially similar to that of marriage for unmarried individuals.”

Freedom Indiana, some legislators and corporations, including Eli Lilly and Co. and Cummins, have expressed worry that domestic partner benefits offered by public and private employers could be at risk if the amendment passes.

But Robert Dion, chairman of the political science department at the University of Evansville, says a key difference is that that claim has gained credence from more than just the activists.

“In fact, you don’t need to look any further than some prominent (Republican) members of the Indiana General Assembly who have said that they think there are problems with that language,” Dion said. “I think it’s fair to say it’s a widespread view that that second sentence is somewhat murky, and the real-world implications of it stretch far beyond just building an anti-gay marriage ban into the constitution.”

He, too, expressed concerns about the claims made about same-sex marriage by Advance America’s church bulletin insert.

What the flier says

Advance America’s bulletin insert has an “Action Plan for Victory” on one side, urging people to tell legislators that voters want to vote on the amendment.

On the other side, it lists “Just Four Dangers of Same-Sex Marriage.”

The church bulletin insert asks those who see it to contact legislators and it contains claims about dangers associated with allowing same-sex marriage.

The first one, about education, says: “Beginning in kindergarten, schools would be required to teach children that homosexual marriages are normal and acceptable and the same as heterosexual marriages.”

That claim, Smith and other advocates say, is based on experiences in Massachusetts after it became the first state to legalize same-sex marriage nearly a decade ago. Parents of young children in two schools sued unsuccessfully after teachers read them or gave them books they considered counter to their religious beliefs.

One book, about different types of families, included a family headed by a same-sex couple. The other, called “King & King,” was about two princes who marry each other.

Federal courts ruled that the parents didn’t have a right to have their children removed from class or be notified if a discussion of same-sex marriage came up.

Beyond those two incidents, though, there is little evidence that Massachusetts schools are teaching kindergartners about same-sex marriage, PolitiFact concluded in 2011. The fact-checking website, which is produced by the Tampa Bay Times and its partners, was reviewing a brochure issued in Rhode Island by the National Organization for Marriage; some of its claims were similar to the Advance America flier.

Advance America’s second claim says a pastor who “preaches what the Bible says about homosexuality” could face jail or fines under a hate crime law.

But Indiana doesn’t have a hate crime law — and even in the majority of states that have one, legal experts say, pastors aren’t at risk because of the First Amendment’s freedoms of speech and religion.

The flier also says that after same-sex marriage, the “next step” is to provide protections based on gender identity.

And doing so “would give men who dress as women legal access to women’s restrooms and women’s dressing rooms,” the flier says.

Gender identity protections have been a source of spirited debate in some states. Smith said the flier’s claim echoes a concern that he and some other social conservatives have.

But Drobac, the IU law professor, suggested that such concerns about gender identity are exaggerated, and she questioned what connection the issue has to Indiana’s marriage ban amendment.

“California has recognized gender identity,” she said, “and California has not fallen into the Pacific Ocean over its rampant immorality and allowing them to use the restroom.”

Business owners’ protests

The final claim made by Advance America centers on an active debate over whether business owners who disagree with same-sex marriage should be allowed to refuse participation in same-sex nuptials.

While some states that have legalized gay marriage have provided religious exemptions for churches and religious organizations, they generally have stopped short of business owners.

Courts and civil rights commissions in places including Colorado, Iowa and New Mexico have ruled against business owners. New Mexico photographers Elaine and Jonathan Huguenin have petitioned the U.S. Supreme Court to review a case based on their refusal to photograph a commitment ceremony in 2006.

More generally, such disputes are at the heart of concerns raised by conservative activists about the changing legal landscape’s effect on their religious freedom.

Alliance Defending Freedom, a Scottsdale, Ariz.-based Christian group, says small business owners are only some of the people who are “under serious legal assault for their faith” because of attempts to redefine marriage.

And in Northern Indiana, Kosciusko County Silent NO More, a tea party group, has said it is supporting HJR6 based on concerns for religious freedom.

On the other side, Lambda Legal, an advocate for gay-rights, says such arguments — and Advance America’s church bulletin flier — are “sadly familiar” from marriage debates across the country.

“As each state, one by one, opens marriage to same-sex couples, it should be increasingly obvious that these claims are just alarmist,” said Jennifer Pizer, the New York-based group’s legal and policy director.

A savvy grassroots campaigner

Miller gets credit from Indiana political watchers as a savvy conservative grassroots campaigner.

For decades, he’s successfully defeated bills that he saw as interfering with religion. The Indianapolis Star recently reported on Miller’s influential role in thwarting attempts to regulate church day cares.

Dion, the University of Evansville professor, noted that Miller fought for years against attempts to pass a hate-crimes law that included sexual orientation.

Miller argued, in part, that such a law would “pave the way for homosexual marriages and the adoption of children by homosexuals,” as he put it in 1998 interview with The Star.

Fifteen years later, Dion and another political analyst say Miller’s impact shouldn’t be underestimated.

Andy Downs, director of the Mike Downs Center for Indiana Politics at Indiana University-Purdue University Fort Wayne, says Miller’s history shows that he knows the value of a swell of constituent phone calls or letters to a legislator.

The church bulletin insert is a smart way to rally amendment supporters to action, he said.

Though polls showing changing public attitudes about the marriage ban and Freedom Indiana’s high-profile endorsements have given that side momentum, Downs says Miller and fellow amendment supporters seem to be gearing up for an aggressive campaign.

“They are serious,” Downs said of activists on both sides. “We do not see people organized like this very often in the state of Indiana.”

Call Star reporter Jon Murray at (317) 444-2752. Follow him on Twitter: @IndyJonMurray.