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Originally published February 11, 2012 at 4:24 PM | Page modified February 11, 2012 at 5:00 PM

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Truth Needle | Gay-marriage wave of lawsuits claim mostly false

Gay-marriage opponents have said there will be a rash of civil suits against individuals and businesses that don't want to provide wedding-related services to same-sex couples because of their religious beliefs. Our Truth Needle concludes that claim is mostly false.

Seattle Times staff reporter

Truth Needle rankings

We base our Truth Needle rankings on those used by Politifact.com, a fact-checking project by the Tampa Bay Times.

True: The statement is true and doesn't require any additional explanation.

Mostly true: The statement is true but requires explanation or additional information.

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False: The statement is false.

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The claim: Opponents of same-sex marriage in Washington state have said there will be a rash of civil suits against individuals and businesses that don't want to provide wedding-related services to same-sex couples because it conflicts with their religious beliefs.

What we found: Mostly false.

Yes, we know it's not possible to prove or disprove something that hasn't happened yet. But it is possible to look back, and when we do, we see that concerns about legal entanglements were raised in 2006 when Washington outlawed discrimination against gay, lesbian, bisexual and transgendered people, and those worries proved to be unfounded.

Nonetheless, the claim that allowing same-sex marriage would result in a slew of lawsuits against businesses resurfaced about three weeks ago, when the state Senate was debating a bill to legalize gay marriage.

That bill has passed the Legislature and is awaiting Gov. Chris Gregoire's signature on Monday.

Six other states and the District of Columbia have legalized same-sex marriage. None has experienced a surge in civil suits against businesses or religious organizations that refuse service to same-sex marriage on religious grounds, a fact acknowledged by even opponents of same-sex marriage.

States that have legalized same-sex marriage seem to have neutralized the potential for suits against religious organizations and religious officials with language that allows those organizations to refuse to recognize same-sex marriages or perform same-sex weddings without being sued for discrimination.

Washington's gay-marriage law includes such exemptions: No religious official could be sued for discrimination for refusing to perform a marriage ceremony for a same-sex couple, and no religious organization could be held liable for failing to open its facilities or its marriage counseling programs to same-sex couples, said Rep. Jamie Pedersen, D-Seattle, who helped push the legislation through the House.

But nothing would change for businesses. They would still have to follow the state's anti-discrimination law, which currently makes it illegal to discriminate against anyone on the basis of race, creed, color, national origin, sex, sexual orientation, disability, military status or honorable discharge from the military.

Opponents of same-sex marriage say there will be a rash of lawsuits against businesses such as florists, photographers, bakeries, tailors and others who, based on their religious beliefs, refuse to provide wedding-related services to same-sex couples.

Last month, Rep. Matt Shea, R-Spokane Valley, issued a news release, saying, "Very clearly, private businesses would be subjected to massive new lawsuits if they decide to exercise their conscience and refuse to participate in a same-sex marriage ceremony."

That's possible, but based on what happened — or didn't happen — when the state adopted protections for sexual orientation, the difficulty in proving discrimination claims, and the lack of legal activity in other states that have legalized same-sex marriage, it seems unlikely.

A spokesman for Shea's office said he was busy with the legislative session and unavailable to discuss the matter further.

Shea cited a wedding photographer in New Mexico who was sued in 2008 after he refused to photograph a same-sex commitment ceremony. (Same-sex marriage is not legal in New Mexico.)

A group of law professors who have closely followed the issue cited the same suit in a letter to Gregoire and key legislators last month, arguing for broad exemptions for religious organizations and individuals who might be in the position of facilitating marriages that are contrary to their religious beliefs.

"Anti-discrimination laws were passed before anyone in the world had thought about same-sex marriage," said Robin Fretwell Wilson, a law professor at Washington and Lee University School of Law and one of the letter's authors.

Wilson said Washington should allow individuals who have religious views against homosexuality to opt out of performing services or providing benefits, counseling and housing for same-sex couples if the couple can obtain those services elsewhere without "substantial hardship."

Wilson's letter cites six cases over nine years in the United States where religious organizations or groups with a particular religious belief against same-same marriage have been pulled into litigation over the issue. But only the New Mexico suit involved a business refusing service to a same-sex couple.

"Today, if a same-sex couple walked into a flower shop and they want to buy flowers, the florist cannot refuse to serve the couple. That's not going to change" under Washington's gay-marriage law, said Sarah Warbelow, state legislative director for the Human Rights Campaign, a civil-rights organization in Washington, D.C., that advocates for equality for gay, lesbian, bisexual and transgender people.

"There are six states now, plus Washington, D.C., that have marriage-equality laws in place," Warbelow said. "None have any increase in the number of lawsuits."

Laura Lindstrand, spokeswoman for Washington's human-rights commission, said discrimination complaints involving sexual orientation and public accommodation are relatively rare and hard to prove.

Since 2006, 49 discrimination complaints involving public accommodation and sexual orientation have been filed with the commission, Lindstrand said.

Two of those complaints were from a gay couple who were turned away when they offered to volunteer at a church-affiliated thrift store that did not want to accommodate homosexuals, Lindstrand said.

The store, affiliated with the Church of the Nazarene in Ilwaco, Pacific County, cited a First Amendment right to freedom of religion and freedom of association based on its interpretation of the Bible. The commission agreed, and ruled in favor of the church.

As for the rest, "zero involved any religious-affiliated groups, and zero of the responding parties raised their religious beliefs as a defense," she said.

A search of newspaper clips failed to turn up any evidence that same-sex marriage had produced a rash of suits involving businesspeople. We also checked with human-rights commissions in four of the six states where same-sex marriage is legal; the commissions said there was not an increase in discrimination findings or suits involving same-sex marriage.

Still, Wilson, the Washington and Lee law professor, predicted an increase in legal conflicts.

"There are lots of people who wouldn't care if it was a civil issue, but who do care if it's marriage," she said. And she said that some of the laws are relatively new, and the conflicts are likely to escalate in the future.

However, because the state's proposed law exempts religious organizations from recognizing same-sex marriages, and because existing laws already make it illegal for businesses to discriminate on the basis of sexual orientation, and because other states with gay marriage have seen no increase in lawsuits, we find the claim to be mostly false.

Susan Kelleher: 206-464-2508 or skelleher@seattletimes.com. On Twitter @susankelleher.

Seattle Times researcher Gene Balk contributed to this report.

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