Same Sex Marriage, the Courts, and Religious Liberty: How Much of a Conflict?


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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21 Responses

  1. Avatar Chris Dierkes says:

    in a word….nice.

    You’re like all smart ‘n stuff with this legal hooey.

    Sadly, saying emotional things like, “They took our religious liberty!!!” (akin to South Park’s “They took our jobs!!!”) will probably convince more folks.Report

  2. Thanks, Chris! And you’re no doubt right.Report

  3. Avatar Trumwill says:

    Kudos! I favor gay marriage and have run into this argument frequently. The counterargument I’ve had to use is that too many supporters of gay marriage would never support a law that would force a Catholic Church to marry gays. I believe this to be true, but the trust level amongst religious people is rather low. Saying that they couldn’t even if they wanted to may be much more convincing.Report

    • Thanks, Trumwill! I should add that the Rweyamamu case is actually one of the narrower formulations of the ministerial exception – other circuits have broader formulations that offer even more protection for religious organizations. It’s not an absolute protector for religious liberties, I should add – but, again, whether or not we allow gay marriage only minimally increases existing infringements rather than creating entirely new ones. The only truly relevant battle for religious liberty concerns is whether sexual orientation is recognized under anti-discrimination laws and whether the courts will create/recognize religious-based exceptions to those laws.Report

  4. Avatar Jaybird says:

    Very nice essay.

    I’ve long thought that “religious freedom” allows for sermons in this church here about the wickedness of X and sermons in that church there about the awesomeness of X. I’ve long thought that “religious freedom” allows for churches to say “we only minister to the following people” while allowing for other ones to say “we minister to everybody except those that only minister to the following people”.

    I also can’t say that I understand the nuances of the argument that claim that two dudes getting married “weakens” marriage. (“Should we petition Canada to change?”, is one question I’ve asked of people making that argument and they tell me that I’m obviously not taking the conversation seriously… which is fair enough but it’d be easier for me to take the conversation seriously if they’d answer a fairly straightforward question.)

    (I do understand (though I do not share) the fear that two dudes will go up to the chapel and be told “we don’t serve your kind here, why don’t you try those godless Unitarians” and they, understandably, get pissed off and sue and, understandably, lose the case in court and lose the church.)Report

  5. Avatar BCChase says:

    Great article. I had this debate hashed out in a bible study a while back, and made a similar argument: the extent to which gay marriage limits religious activity is limited to actions the government has taken to explicitly favor religious activities (which people argue “marriage” is, as opposed to civil unions). Their arguments eventually boiled down to” I don’t want our son growing up thinking being gay is okay” and so any measure that made it more acceptable to be gay in society was wrong. No matter what Rod tries to justify, at its bottom that sentiment – and losing out on government handouts a la DC – is the motivation behind the anti-gay marriage movement.Report

  6. Avatar z says:

    Rod doesn’t really do any research for his posts, I’ve found, and knows nothing about law. A few months ago he was in a panic over the case about the school that kicked out a lesbian student, which had already been litigated, and the school won.Report

  7. Avatar td says:

    Rod’s point is stunningly shallow, so much so that when I first read his thoughts on the matter I assumed I must be missing something in his writing because he couldn’t possibly be making such a weak point. The only “right” the Christians would lose in this case would be the “right” to use the government as an agent of their bigotry and it speaks to the depth of their bigotry that this is not achingly self evident to them.Report

  8. Avatar North says:

    Well you have to keep in mind that Rod has been banging the drum about the gays coming to get all faithful believers ever since proposition 8 went down in California. He seems to genuinely think that one youtube of angry gays chasing some bible thumpers out of Castro is proof positive of an anti christian pogrom commencing.Report

  9. Avatar Frank says:

    Rod’s arguments usually boil down to “You nasty gays are getting blood on our Christiaan jackboots when we stomp your faces.”Report

  10. Avatar Dan Miller says:

    Great article! I think, at the end of the day, Dreher is afraid not of government force, but of social sanction. He wants it to be OK to discriminate against gays. His biggest worry, I think, is that churches that refuse to perform same-sex marriage will be treated the same way as those who refuse to perform interracial marriages. It’s legal, but those who do it are shunned.Report

  11. Avatar Kent says:

    The link provided to support the assertion that the DC Council threatens to pull its contracts with Catholic Charities does not, in fact, support that claim. The DC Council would prefer that Catholic Charities continue its work under city contracts but expects the recipient of any contract to abide by the non-discrimination law. The threat was issued by the Archdiocese when it declared that these charitable, non-religious functions would cease if the city amended the law. As Mark points out, it is common for religious discrimination to be defended by claims of infringement of religious liberty. Yet, obviously, this slippery slope works both ways. The Archdiocese is essentially threatening innocent third parties in order to expand the scope of its own, internal discrimination policies into the public sphere. And that, as they say, is not very Christian of them.Report

  12. Avatar Richard says:

    I’m new to this blog, and not an attorney, so please grant me a little leeway here. I’m basically confused as to why religious belief *should* except someone from anti-discrimination law. Yes, I know we have Constitutional protection for the free exercise of religion and also judicial precedent. That’s not what I’m talking about. On a more philosophical level, I’m just curious why “religious” belief should be acceptable as a basis for discriminating, when “philosophical” belief or “worldview” or non-religious but deeply held “personal values” do not get this same latitude. Why should the religious convictions of one person be treated as inviolable, when another person’s worldview does not get the same protections? Why should a Baptist preacher be allowed not to marry a gay couple, but the gay couple can’t refuse to serve the Baptist preacher in their place of business because of the preacher’s refusal to marry them? Is it really just the claim of heavenly inspiration that makes discrimination OK in the first instance? I don’t see why religion should be given protections that other deeply-held but non-religious belief systems don’t enjoy.Report

    • Avatar Jaybird says:

      For the record, I am 100% down with opening a restaurant and the owner refusing to serve a particular group of clients. “We don’t serve your kind here”, the owner could say. Then those people (Baptist ministers, in this case) could claim that they have a right to eat wherever they wanted, even at the “Methodists Only” diner.

      I think that the government, of course, ought to not have a lock on permits for restaurants, of course. If the Baptists want to open a restaurant, the government should pretty much rubber-stamp their application. I oppose the very idea of making things really easy for Methodists to open a diner but to put roadblocks in front of Baptists…

      But I’m one of those evil people who think that the Methodist Diner should be allowed to have a smoking section too, if the owner is inclined to allow smoking on his property. They can put a sign in the window:
      “Cigarettes YES! Bapists NO!”

      And if you don’t want to eat at the diner, you don’t have to. You can go to the Baptist diner down the road. They don’t smoke, or drink, or chew, or date the girls who do. It’s a much nicer environment to get a cuppa and a slice of pie. No cigarette smoke or nothing.Report

      • Avatar Cascadian says:

        If religious freedom and the establishment clause were truly taken seriously, I could finally open that little Rastafarian temple to Dionysus and Aphrodite I’ve always dreamed of.Report

        • Avatar Richard says:

          Cascadian – I’d like to join your Rastafarian temple to Dionysus and Aphrodite, so I can exercise my freedom of religion, too (my freedom of philosophy isn’t given the same rights in this country). As a charter member of the temple, can I help write the by-laws… I mean, uh… religious tenets?Report

    • Without getting into the general freedom of association issues inherent in any anti-discrimination law, the case for making a special exemption for religions rests as much, and possibly more, on the Establishment clause as opposed to the free exercise clause. When government starts telling religions qua religions what they can and cannot accept as a matter of religious doctrine, the government is in a very real sense “establishing” its own religion. There are limitations on this, of course, but generally they have to do with matter of criminal rather than civil violations. Presumably, part of the rationale for this would be that the State’s interest in enforcing criminal laws of general applicability is far greater than its interest in enforcing civil laws of general applicability.

      In the case of discrimination laws, there’s also an added element of inquiring into the actor’s motive that does not exist in the relevant criminal contexts – if you’re bringing someone up on a drug charge, you don’t need to prove that they had a bad reason for having the drugs, just that they knowingly possessed the drugs; on the other hand, if you’re going to file a discrimination suit against someone, you need to be able to show not only a prima facie case of discrimination, but also that their proffered, non-discriminatory reasons for discriminating are merely pretexts. In the case of a religious organization arguing that they refused to marry a couple not because they hate gays but because gay marriage is against their religious doctrine, there’s no way for a court (which is an institution of the State) to reach a decision on whether that rationale is pretextual without engaging in a rigorous inquiry into the legitimacy of the church’s doctrine.

      There is arguably a distinction to be made where you’re dealing with an employer who happens to be a member of the church rather than the church qua church on the grounds that an employee’s private activities are not conceivably relevant to the performance of his job. In other words, it’s intrinsically true that part of the job description of a Catholic priest or a Baptist minister or a Muslim imam or a Jewish Rabbi is being a good Catholic, Baptist, Muslim, or Jew; however, in most forms of lay employment, being a good Catholic, Baptist, Muslim, or Jew is probably not relevant to one’s job description.Report

  13. Avatar Chris says:

    “It is impossible to conceive how a law prohibiting sexual orientation discrimination in the private sector is a greater or materially different burden on religious liberty than a law prohibiting religious discrimination!”

    This is a very important point, and one all too frequently overlooked by commentators who complain that laws prohibting discrimination based on sexual orientation threaten religious liberty. If a Christian innkeeper’s religious freedom is harmed by being forced to accommodate a same-sex couple, then a Muslim innkeeper would have an equally strong claim that his freedom is harmed by being forced to accommodate unmarried women, or women who don’t cover their heads, for example. Is a shopkeeper who believes that graven images are blasphemous have a right to refuse service to a Catholic who wears a crucifix? There are endless examples, and they all point to the reasons why we don’t allow religious exemptions simply because a businessperson has strongly held religous views.Report