Answering Ross Douthat

by Alan Scott

On November 20th, 1998, John Lawrence and Tyron Garner were found guilty of violating Chapter 21 section 21.06 of the Texas Penal Code, which made homosexual intercourse a class C misdemeanor. They were each fined $100. Their lawyers, from the gay-rights group Lambda Legal, considered this to be unacceptable. And so they asked the court to increase the fine to $125.

Lawrence v. Texas, argued before the supreme court in 2003, invalidated sodomy laws in the United States and was an early step on the path that is likely to end with legal same-sex marriage in all fifty states. But it was a miracle that the case ever got that far. Lawrence and Garner were only arrested because of a melodramatic confrontation spurred by a false police report. They hadn’t actually engaged in illegal sodomy that night, and could easily have proved their innocence in court. And even after they plead “No Contest”, the penalty was so small that they wouldn’t be allowed to appeal (hence request for an increased fine).

So why the fuss? Why did gay rights advocates feel such a driving need to challenge a law that was so rarely enforced and then only for a slap-on-the-wrist punishment?

They did so because the mere existence of such laws continued to do real harm to gay men and women. Because they were, undeniably, criminals. Even though Lawrence and Garner hadn’t broken the law that night, they’d been breaking it regularly for most of their adult lives. The label of criminal put gay people in danger of losing their livelihoods and their families. This ACLU article catalogs the ways in which the lawbreaker status of LGBT individuals was used to attack their right to organize, put their jobs in danger, and remove their children from their custody. The real danger of anti-sodomy laws was that they signaled an official disapproval of LGBT people, and in doing so helped maintain a culture of LGBT discrimination.

Indiana’s recently passed RFRA is similar to the Texas sodomy law, in that it’s greatest danger is the signals it sends about what treatment of LGBT people the state of Indiana finds acceptable. The law was written at the behest of anti-gay lobbyists and sold to supporters on that basis. The furious reaction we’ve seen is likewise a response to the signal the law sends, rather than the specifics of its operation.

Dennis, in his two posts wonders whether that backlash might be going to far. He points out that “Within reason, no one should have to compromise their faith to live in the wider society. We need to honor their consciences even if we think that their beliefs are wrong.” He points at the Utah Compromise as a possible way forward.

Dennis is right. A society that has no place for the religious beliefs that we disapprove of isn’t any better than a society that has no place for gay people. The issue of what sorts of accommodations society should make is not an easy one to puzzle out.

And yet, we have puzzled them out. Within living memory, a significant number of American Churches taught that separation between races was divinely ordained. Religious faith was held up as a shield against the forces of desegregation, and our country was forced to grapple with the conflict between religious pluralism and society’s need to combat prejudice. I see no reason why the same policies can’t be applied in the case of LGBT individuals and same-sex marriages.

This flippant statement, though, is upsetting to Ross Douthat. Douthat writes:

And whether you find this view, this analogy, persuasive or you don’t, it has a lot of possible further implications. Because in the annals of American history, both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary. So if our current situation with same-sex marriage and religious conservatives really is analogous, there is no obvious reason why we’ve reached any kind stopping point once the florists and bakers have been appropriately fined or closed down.

Hence the following seven questions about future steps, which I’ll pose specifically to Epps and generally to the Indiana law’s many liberal critics. Some are rooted in real-life examples and possibilities; some are much more (I think) unlikely. But I’m still quite interested in whether people would support them if they were to become plausible options a little ways down the road.

As a gay, liberal critic of the Indiana law, I’ll take a shot at answering his questions. That said, I don’t speak for all liberals, and I certainly don’t speak for all gays. I am not someone who has suffered for his sexual orientation. The worse that’s ever happened to me is that a handful of times, someone’s said something nasty to me and I had a bad day. There are LGBT people in this country that have suffered (and in many cases continue to suffer) ongoing harassment, economic discrimination, and violence because of their sexual orientation or gender identity. While eliminating that suffering is my primary goal in advocating for LGBT rights, my take on the issues cannot substitute for the opinions of those who bear the brunt of anti-gay bigotry.

And so, onto the questions:

1) Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?

The first question I ask to judge whether a discriminatory practice should be permissible is: how likely is the practice to cause harm to a member of the group it targets?

The question of harm is so tricky because college is a period of change and self discovery. If every student had a complete understanding of their sexuality when they chose which college to attend, an anti-gay honor code would present no problems—gay students would just go somewhere else. But in real life, students may very well discover that their sexual identity (or, for that matter, their religious identity) is at odds with the expectation of the college they attend.

Religious colleges have an educational obligation to their students in this matter (as do all schools. For example, Women’s colleges must deal appropriately with the issue of gender-transitioning students.) That doesn’t mean that a bible college student who comes out two weeks into freshman year should be allowed finish his bachelor’s degree, but it does mean that the college should make a good-faith effort to help the student transition into a more appropriate educational environment without imposing further hardship.

Accreditors have a perfectly legitimate interest in such questions of student treatment. But the Accreditor’s primary purpose is to gauge whether the school is remaining faithful to its educational objectives. And schools with religious objectives are entitled to support those objectives with religious codes of behavior, and to do so without risking their accreditation.

2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?

Such practices generally pass the harm test. But there is a second question I ask to judge the permissibility of a discriminatory practice: Does this practice work to support or maintain a culture of discrimination? As in the case of the Texas sodomy law, it’s possible for something that is directly harmless to nevertheless lead to a situation where significant harm is done.

That’s not the case here. Anti-gay schools don’t significantly contribute to a broader environment of anti-gay animus, because their students would likely still hold anti-gay religious beliefs even if they attended public universities or gay-supportive private universities. If anything, the existence of such schools reinforces the belief that anti-gay prejudice has no place in broader secular culture.

All schools, regardless of whether they are secular or religious, and regardless of whether the religious schools are guided by anti-gay theology, should be eligible for 501(c)3 status. That way, the conferral of such status doesn’t in any way represent government support (nor opposition) to the views espoused by the school. I’d be much more wary of a scheme by which the government decreed that some schools were worthy, while others were not. For that reason, I disagree with the supreme court on the matter of Bob Jones University, and certainly wouldn’t approve of any similar effort to strip Universities of tax-exempt status because they maintain anti-gay doctrines.

3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?

Colleges should be free to dictate viewpoint-neutral rules for student groups, including rules that require groups to be open to all students. Carving out exceptions to these rules, especially when those exceptions are specific to anti-gay practices, sends the message that religiously motivated anti-gay discrimination is more acceptable than other forms, and therefore supports a culture of homophobic discrimination.

As I said, my experience as a gay man has been an overwhelmingly positive one, and that’s in no small part due to the love and support I’ve received from my family. And all of that love and support is rooted in Catholic family values, values more important and more integral to the faith than the church’s official doctrine on homosexuality. The phrase “Traditional Judeo-Christian-Islamic view of sexual ethics” is absolute nonsense, because there’s no one view that’s common to all religions, or to all denominations of a single religion, or even to all members of a single denomination. There is absolutely no reason that a school like Harvard can’t have a chaplaincy that includes Catholic Priests, Orthodox Rabbis, and Evangelical Ministers while still providing affirming religious council to LGBT students of faith.

4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?

Remember how I said my bad experiences were just a handful of bad days? Most of those days happened in 2008. In the worst, a woman accused me of being a pedophile who supported gay marriage because I’d be able to molest young boys. Brendan Eich’s money helped pay for that confrontation. I imagine many of Mozilla’s LGBT employees and volunteers had worse experiences that I because of Proposition 8, and Eich’s refusal to acknowledge the pain he caused absolutely justifies Mozilla’s actions.

I have yet to hear an argument in opposition to same-sex marriage rights that is not, on some level, and insult to gays and lesbians. Every argument paints us as sick or sinful or unnatural or un-whole. That is not a thing you get to say to people without occasionally suffering consequences. When your career success depends on not insulting people, on not making enemies, loud support for same-sex marriage is going to hold you back. There is no great political-correctness brigade that is holding back people like Eich or the hypothetical Orthodox Jewish professor. They’ve been tripped up by universal rules of human interaction.

Professor George has the best of it. Tenure exists, in large part, to relieve academics of the need to be polite and otherwise keep people happy. Stripping a professor of tenure on the basis of unpopular opinions seems to defeat the purpose of the institution.

5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?

6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?

Yes to 5, no to 6. Clerical officials who refuse to participate in same-sex ceremonies do no harm to same-sex couples, because they can always be married by supportive clergy or civil officials. Nor do tax-exempt churches do any harm that tax-paying churches would not.

7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?

I don’t know the answer to this question. I don’t even know if there is a good answer to this question. Undoubtedly, there are parents who do their children harm because of homophobic or transphobic beliefs. But just as surely, there would be a great many children harmed if the state chose to insert itself into the family relationship in some ham-handed attempt to protect them. I’ve heard many stories about LGBT children and their parents. Most of them have happy endings, but the beginnings aren’t always so pleasant. Sometimes there is confusion. Sometimes there is pain. But in most of those stories, the confusion and pain give way to love and to understanding. Mandatory secular schooling, doesn’t seem like something that’s going to lead to more happy endings.

The best that can be done is to change the culture. There’s no reason except inertia that most christian schools and yeshivas and madrassas can’t be just as accepting of homosexuality as public schools are. America’s faithful are much less homophobic and transphobic today than they were a few decades ago. I believe that a few decades from now, they will have continued to improve.

Douthat and his ilk see religious discrimination against LGBT people as enduring and integral to the faith. Therefore, burdens against such discrimination are a unique imposition upon religious freedom and rights of conscience. But that’s hogwash. A Christian citing Genesis 9:25 to justify racism or a Christian citing Deuteronomy 28:28 to justify disability bias has the same right to religious freedom as the Christian citing Leviticus 18:22 to justify anti-gay views. And the Atheist who opposes gay marriage is exercising his right to conscience no less than the Christian.

If the law carves out an exception for religious opposition to gay marriage, then it’s treating that view as more valid and more worthy of respect than other discriminatory views. Such a treatment is not only harmful to the LGBT community, but is also harmful to the religious community. Faith need not be linked to bigotry. Religious views about the issues of the day can and do evolve just as much as secular views. To calcify religion at its worst and most bigoted by writing that bigotry into law is to do it a great violence.