Amicus Briefs on Marriage Equality and the Burdening of Churches and Believers

Conservative religious organizations—the LDS Church, the Conference of Catholic Bishops, the National Association of Evangelicals, the Ethics and Religious Commission of the Southern Baptist Convention and the Lutheran Church-Missouri Synod—all signed on to an amicus brief urging the Supreme Court to resolve the debate over marriage equality. One of their arguments, however, is at least curious. The brief contends that legal uncertainty is “especially burdensome for religious organizations and religious believers increasingly confronted with thorny questions.” Kevin C. Walsh, The Catholic/Evangelical, LDS, Lutheran amicus curiae brief in support of cert in the Utah same-sex marriage case, Sept. 22, 2014, in Mirror of Justice: A Blog Dedicated to the Development of Catholic Legal Theory.

This brief contends that state officials will not negotiate religious liberty protections--based either on the view that gay marriage is a constitutional right or because it is premature until the Court resolves that issue. The brief also observes that states that have adopted marriage equality legislatively have often included some protections for religious organizations. “Is their a right to refrain from participating in, recognizing or facilitating marriages between persons of the same sex, contrary to their religious convictions, adequately shielded by the First Amendment and other legal protections? Or is further legislation needed to guard religious liberties in these and other sensitive areas?"

The suggestion is that religious objectors to gay marriage should have a right, rooted in religious freedom, not to be compelled to participate in, or lend support to, same-sex marriages. Finally, the brief argues that a marriage equality decision will leave open the question of “the scope of protections for cultural dissenters from the new federally imposed understanding of marriage.” It is difficult to perceive this whole line of argument as much more than a red herring. There is no reason to think that, even if the Supreme Court adopts marriage equality, there would not be room for state legislatures to provide for religious accommodations.

There is reason to doubt that any such accommodation is even a good idea, even if within a state legislature’s powers. No one asserts that marriage equality would mean that any religious organization would or should be compelled to officiate at gay weddings. If the proffered “protections” involve permitting religious objectors not to contribute to or participate in gay weddings, it is doubtful, at least, whether the state should excuse people from giving others fair and reasonable treatment—permitting, instead, sexual orientation discrimination—on the simple ground that they are “cultural dissenters” (to use Walsh’s phrase). People strenuously opposed to gay marriage, even if squarely on religious grounds, have every right to oppose it and to adhere to religious beliefs that oppose it; but there is no reason to think that this should entail the right to “strike back” at a society that has found the grounds for opposing gay marriage to be insufficient.

As one who is LDS, I can say confidently that, however the LDS Church views gay marriage, there is no more reason for an LDS person to decline involvement in a gay wedding than in the Pagan wedding of a close relative of mine—even though the Church might think one should be legal and the other not. Even if one believes gays are rebelling against God, it hardly entails one’s insisting that there is a religious duty to stay away in protest. I can respect another’s right to believe that interracial marriage is fundamentally wrong—even on religious grounds—and thus to think that Virginia v. Loving was wrongly decided. But even if this were my view, I could not reasonably insist on the right to have a public business, but to still refuse to serve an interracial wedding.

That one thinks gay marriage should not be a civil right need not mean favoring the religious opponent of gay marriage over the religiously grounded opponent of interracial marriage. The only counter I’ve ever heard is the almost hysterical insistence that not giving greater protection to the religious anti-gay marriage advocate amounts to demonizing him (or her) as a bigot. Do we really want to say that the 90 % of Americans who opposed interracial marriage in 1960 were simply bigots? Must we really either reject the civil rights claims of gays or view those opposed to gay marriage as nothing more than homophobes?

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