Religious Freedom and Marriage Equality

Perhaps the largest misconception promulgated in the current debate over gay marriage is the commonly offered argument that its establishment would threaten religious freedom. The most direct and significant threat the prospect of gay marriage presents to American religion is that, if conservative religious people—those who view legal action that lends legitimacy to homosexual conduct as effectively society’s decision to reject God’s commandments—lose the marriage equality debate, it will prevent them from imposing their religion on those citizens who do not share their religious beliefs. Societal acceptance of gay marriage necessarily means that the nation is not just determined to tolerate adult gay relationships, which includes (thanks to Lawrence v. Texas) refusing to criminalize gay sodomy, but is committed to treat gay relationships and behavior as quite acceptable, and indeed within the private sphere of autonomous constitutionally protected individual decision-making. Religious opponents to all things gay do not simply oppose this view of gay freedom, but are fearful of is consequences.

This is why the campaign in favor of Proposition 8 in California so often emphasized the potential impact of gay marriage on California’s children. Proponents contended that legal recognition of same-sex marriage would implicitly mean that public schools would be required to teach their students that they might legitimately pursue gay relationships, marriages, and families, and that all the relationships, and families, are the equivalent of the others. This was a dubious claim, however, since the public school curriculum in that state in no way calls on teachers to make any such comparative evaluations. Is seems quite clear that the real crux of this concern was this one: Robert Combs, President of the Christian Coalition of America, objected strenuously that “marriage is one of the last obstacles to the normalization of homosexuality in America.” (quoted in Marci Hamilton, God vs. the Gavel: Religion and the Rule of Law 52 (2005)). As Professor Hamilton observes, all to often “religious voices speak of public policy and the public good while just assuming that this public good will be served by expressing the electorate’s disapproval of all same sex activities and relationships.” (Id.) Of a piece is the tendency of religious conservatives to insist that the analogy asserted to exist between laws forbidding interracial marriage and laws against same-sex marriage wrongly portrays those who object to same-sex marriage as nothing but bigots engaged in conduct that is the equivalent of racial discrimination. This is the argument used to protest reliance on the analogy between laws banning same-sex marriage, and the ruling of the Supreme Court against anti-miscegenation laws. Notice how much this sort of argument benefits from hindsight, In 1960, 95% of Americans opposed black and white marriages, even though anti-miscegenation laws were gradually being repealed. Those who strenuously oppose interracial marriage are today viewed as holding bigoted views.

But we would simply not have been capable of offering the same judgment in 1960. The issue all this raises is whether the analogy between prohibitions on interracial marriages and same-sex marriages is the stretch it is sometimes portrayed as being. Conservative black religious leaders in the South strenuously rejected the analogy between bans on gay marriage and the prohibition on interracial marriage rejected in Loving v. Virginia, 388 U.S. 1 (1967). They relied on the “I Have a Dream” speech of Martin Luther King, Jr., where the reverend called for people to be judged not by the color of their skin but by the content of their character. The clear implication is that gay couples are not being judges by something arbitrary such as skin color, but by the lack of character demonstrated by who perform gay sex. Two conservative marriage equality critics followed this comparison up by suggesting that, as “character is the measure of morality in a person,” and “there is a major difference between marriage and homosexual relations,” we should reject the analogy between Loving and same-sex marriage. See Lynn D. Wardle & Lincoln C. Oliphant, In Praise of Loving: Reflections on the “Loving Analogy” for Same-Sex Marriage, 51 How. L.J. 117, 148 (2007).

The apparent view is that, even though marriage is a basic civil right, same sex couples are engaged in such immoral conduct that they are not worthy of marriage. This all reminds me of a conversation I had with my research assistant back in 2012. The Vice Presidential candidate, Paul Ryan, was a purported “libertarian,” who opposed the individual health care mandate mainly on that basis. Yet Ryan was also a “good Catholic,” who—notwithstanding his “libertarian” credentials and arguments—voted against the repeal of Don’t Ask, Don’t Tell. My assistant that year was also a Catholic and I teased him that apparently Ryan was a good libertarian, except when he had the opportunity to impose his religion on his fellow Americans. Those who advocate the right of religious people to discriminate against gays as to servicing gay weddings are generally walking a similar path. We have absolutely no reason to doubt that they object to gay marriage on religious grounds.

But this hardly suggests that they truly believe they have a religious duty to stand as a barrier to gay weddings. Although some will speak of a “religious duty” not to “facilitate” evil—assuming that participants in a gay marriage are performing evil—it seems that what is really involved is the search for someone to “penalize” or “punish” for the LGBT community having won the political debate over marriage equality. If one of the goals of a free society is to honor the right of people to make basic decisions, such as the religion we will subscribe to, even conservative religious people should be committed to honoring—i.e., at least accepting—the decisions of a growing number of churches to sanctify gay marriages. Some of the debate engendered by photographers and caterists not wanting to serve gay weddings probably tells us more about the extent we all seem involved in the culture wars than it does as to anyone’s views on religious freedom. It is difficult to imagine that a photographer with “reservations” about gay marriage could not find a way to discover the he is just too “booked” for the period to be reserved. (Or, alternatively, such a one could hold his nose and just do what he holds himself out to the public as doing for a business.)

One might almost as readily wonder if the gay couple involved could not easily find a “willing” wedding photographer. But if each group feels obliged to fight the culture war, it underscores that we may be speaking less about religious conscience than about a political fight. Historically, we have been reluctant to conclude that a person’s freedom to exercise their religion was seriously threatened by a general legal requirement that was not aimed at attacking the individual’s particular religion. Those who apply anti-discrimination laws to acts disadvantaging another based on sexual orientation are not attacking any religion, but implementing a societal decision that this is a requirement of basic fairness. Someone is entitled to be a racist, even on religious grounds; but we have never been troubled about requiring even the most religious people to avoid racial discrimination in conducting their public business. And all too often religious opponents of gay marriage just seem to forget that we live in a world of religious pluralism. For every religious leader, or person, who opposes gay marriage for religious reasons, there are religious leaders and people who believe religiously that God recognizes the rights of gays to marriage. Each group is perfectly entitled under the First Amendment to hold their conflicting religious views—but that hardly means that either holds a First Amendment right to insist upon acting against the rights society has recognized in others. Society’s need to reject the extreme religious liberty claims of some on the religious right is almost as important as its need to embrace the idea of marriage equality. 

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