Repost: Same Sex Marriage and the Religious Liberty Red Herring
It would be a false comfort… to suppose that the gays-as-oppressors narrative can’t and won’t take root among moderates and thoughtful, mainstream conservatives — people like Michael Gerson and Peter Wehner, former Bush administration officials, who write, “If [gay] marriage is deemed to be a civil right — and if opponents are therefore deemed to be the equivalent of modern-day segregationists — churches may eventually be compelled to act in a way that complies with the spirit and letter of ‘anti-discrimination’ law rather than with orthodox Christian teaching.” Stated that way, the claim happens to be true.
This argument seems to be the last and strongest bastion of forces opposing same-sex marriage, particularly to the extent that it is instituted as a result of judicial decisionmaking. Over a year ago, I examined this argument, then made by Rod Dreher, in much depth and showed why it is utterly baseless, and indeed an example of a “self-serving slippery slope.” Since it seems to be relevant again in light of the ongoing discussion, I am reposting it below:
Rod Dreher makes the case, once again, that same-sex marriage presents a unique and unavoidable conflict that will drastically undermine religious liberty in this nation, concluding that the ”conflict between gay rights and religious liberty is deep, serious and irresolvable to the satisfaction of both.” Dreher further argues that:
“It’s one thing if the boundaries of gay rights are set by statute, as in the DC case. It’s another if they are set by a court in a constitutional case. In the former, exemptions for religious organizations can be carved out — but if the Supreme Court decides that gay marriage is a constitutional right, then religious organizations will be given much less room to move, and there’s nothing they will be able to do about it.”
On both counts, Rod misunderstands the nature of the conflict and the role of the legislature and courts in creating (or potentially alleviating) that conflict.
First, the conflict here is definitively not between gay marriage and religious liberty. It is instead between laws regarding private discrimination and freedom of association, or perhaps between licensing laws and freedom of religion. As they affect the private sphere and specifically religious organizations, gay rights, and specifically same-sex marriage, represent at most an expansion of existing conflicts rather than any new type of conflict. Even here, the conflict arises not from whether or not same-sex marriage is permitted, but instead from whether or not statutory laws recognize sexual orientation as an impermissible basis for private discrimination (whether in an employment context, public accommodations context, or otherwise), which is independent of whether same-sex marriage is permitted.
Moreover, Rod’s trust of legislators over the courts as being more likely to carve out exceptions to protect religious liberty is simply incorrect. History in fact shows us that the opposite is true: the courts are more likely to carve out exceptions to resolve Constitutional conflicts than are the legislators, who have a tendency to too-easily delude themselves into believing that nothing they do can conflict with Constitutional liberties.
Rod makes one specific claim that presents a clear opportunity to demonstrate the above two points. Rod writes:
“The usual cry that goes up from gay rights backers is that no pastor is going to be forced to marry a gay couple or be censored if he preaches against homosexuality, so there’s no problem at all. That’s simply untrue.”
With all due respect to Rod, his claim ignores a mountain of case law from the last several decades that makes the opposite readily apparent. For instance, despite anti-discrimination statutes that contain no exceptions for religious liberty, the courts have fairly uniformly adopted a doctrine of prohibiting so much as an inquiry into religious matters. This doctrine is called the “ministerial exception,” and to my knowledge has been adopted by every court that has had the opportunity to consider it since it was first proposed by the Fifth Circuit in 1972?s McClure v. Salvation Army, 460 F.2d 553.
The Second Circuit’s recent adoption of the doctrine in Rweyamamu v. Cote, 520 F. 3d 198 (2008), is illustrative. The plaintiff was a Catholic priest who alleged he was denied a promotion and eventually fired due to racial discrimination. The diocese had claimed that he was dismissed because of the quality of his homilies and his insufficient devotion to his ministry. After the trial court quickly dismissed the case, the Second Circuit upheld the dismissal, holding that any inquiry whatsoever into the church’s motivations for the firing would itself be an impermissible violation of the First Amendment right to the free exercise of religion. Because the court could not inquire into the legitimacy of the church’s defense without violating the First Amendment, it had no choice but to dismiss the case entirely.
Although Rweyamamu was a priest, and thus a clerical employee, the Second Circuit made clear that its holding also had implications for lay employees, stating “even when we permit suits by lay employees, we will not subject to examination the genuineness of a proffered religious reason for an employment action.” In other words, the courts have created an exception to general anti-discrimination laws that prohibits them from so much as inquiring into the legitimacy of church doctrine. This particular exception also directly refutes Rod’s claim that same-sex marriage, combined with anti-discrimination laws, will result in churches being forced to perform gay marriages or a pastor being censored for preaching against homosexuality – the exception makes clear that the courts simply will not take a case that requires them to inquire into the legitimacy of church doctrine, as they would need to do in order to handle any allegation of sexual orientation discrimination.
Courts have created exceptions in myriad other contexts, as well, including contexts where they were recognizing a right that the legislature had failed to recognize – in Heller, for instance, it was made quite clear that despite the existence of an individual right to keep and bear arms, that right had significant limitations such that most gun control laws would likely withstand scrutiny. The notion that any right first recognized by the courts will inevitably lack any exception for religious liberty is empirically wrong and ignores that, as often as not, it is the legislature that makes insufficient provision for the protection of religious liberty, leaving it to the courts to create such provisions. Indeed, the very example that has led to this discussion – the threat of the DC Council to pull its contracts with Catholic Charities – is a result of a legislature not only failing, but possibly actively refusing to grant exceptions to religious groups, no matter how strong the Constitutional arguments in opposition.
That’s not to say that same sex marriage and gay rights present absolutely no conflict for religious liberty. Rather, to the extent those conflicts exist, they exist as a result of government interference with the private sector in the first place (for instance, in the form of public accommodations laws such as that under consideration in the DC example), and have existed for a very long time. It is only now, however, that the conflict seems to be worthy of discussion.
Rod cites, for instance, this Chai Feldblum article, for the proposition that any expansion of gay rights must come at the expense of an equal contraction of religious freedom (and vice versa). I think Rod misunderstand’s Feldblum’s point, which almost exclusively emphasizes the effects of anti-discrimination laws regulating the private sector rather than laws requiring the State to be morally neutral with respect to homosexuality. True, she mentions civil unions and SSM in passing at various points, but so far as I can tell, every single example of a conflict between gay rights and religious liberty involves some sort of a public accommodations or employment discrimination law.
She fails to distinguish – nor does she even attempt to distinguish – how anti-discrimination laws that cover sexual orientation present a greater or materially different conflict for religious liberties than other anti-discrimination laws such as laws that prohibit discrimination based on marital status or military status or based on race or religion. 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!
Perhaps these interferences with freedom of religion and of association are justified, perhaps they are not – that’s not really relevant to my point.* What is important here is that to the extent there is a conflict between gay rights and the free exercise of religion, it is solely within the context of whether anti-discrimination laws writ large present an unacceptable conflict with the free exercise of religion. Same sex marriage, in and of itself, thus presents no greater a problem for religious liberty than does no-fault divorce. It is only laws that prohibit private discrimination in the first place that actually present a conflict with the free exercise of religion. It has also quite often been the courts who have had to step in and create exceptions to those laws to alleviate the conflict with religious liberty and freedom of association due to the legislature’s failure to adequately do so.
*Certainly, though, almost all of us would agree that requiring a government employee acting in a non-discretionary capacity to administer his job in a non-discriminatory fashion is not a threat to that employee’s religious liberty – in choosing to work for the government in such a capacity, he is agreeing to administer the law of the land neutrally and regardless of his own personal religious beliefs. To believe otherwise would be to allow that employee to “establish” his religion as the government’s official religion for purposes of that task, and to quite severely burden the free exercise of religion of all that come within his purview.