Religious Liberty, Gay Marriage, and Sexual License

I recently attended a conference sponsored by a law school in this region. The conference held a couple of panel discussions that related to themes of religious liberty and the threats it arguably faces today.  When I returned home, I wrote—via e-mail—to an old friend who teaches at the sponsoring law school.  The following is a portion of the content of that e-mail, with my old friend’s name omitted:

. . .  My main excuse for going to the conference was that I’m teaching our law and religion seminar this semester and the conference had a couple of relevant panels. . . The conference, on the whole, was good fun and I was glad I went. . .

Even so, I was disappointed at some of what I heard at the panels I attended. Let me supply a single example. One of the panelists, a member of the faculty at the sponsoring school, had been discussing the facts and legal issues raised by the current religious freedom law suit involving Hobby Lobby, and its claim for a free exercise exemption from complying with requirements for health insurance under the Affordable Care Act. Hobby Lobby asserted that the requirement that health insurance policies include a provision for obtaining prescriptions for contraception required it to act in a way that violated its religious conscience. The discussion related to whether a corporate employer engaged in a business open to the public, and employing people who do not share the religious views of the business operators, could invoke the employer’s religious conscience to argue for an exemption from the law’s requirements.

A questioner from the audience offered the observation that the conflict between women’s rights and interests and religious liberty in the Hobby Lobby case reflected the clash often identified as our society’s “culture wars.” The faculty member readily agreed and offered the supplemental observation that it presented the direct clash between “religious liberty,” on one hand, and what he labeled “sexual license,” on the other. Beyond whether the debate over contraception relates to sexual license, this same legal commentator suggested that the debate over same-sex marriage concerned this very clash. I confess to being a bit dismayed that, as I looked around, I could not perceive anyone else who seemed shocked to hear this sentiment expressed. Here are the grounds for my reaction: in the first place, the connection between religious liberty and the same-sex marriage debate seems extremely obscure to me. Surely all the states could adopt same-sex marriage without negatively impacting religious liberty at all. No one contemplates requiring churches to recognize and validate same-sex unions.

The only arguable clash between same-sex marriage and religious freedom would relate to the application of non-discrimination laws to public businesses operated by individuals who object on religious grounds to gay marriages. A wedding photographer in New Mexico, for example, contended that her religiously-grounded objection to such marriages meant that it violated her religious conscience for New Mexico to forbid her to refuse to document a same-sex commitment ceremony. The question raised, of course, is how and why a religious objection to gay marriage gives rise a religiously-grounded objection to providing a business service—taking photographs—of a related event. One might imagine that a religious person might perceive herself as having a religious duty not to “facilitate” wrongful or sinful conduct.  But it is surely doubtful that one could plausibly assert a belief that there is a religious duty not to deliver cookies to the church house where such a wedding will occur, or that there is a duty not to facilitate their sin by delivering the mail or loading the groceries of gay couples. If there is room for any “facilitation” avoidance rationale for a religious conscience duty, its applicability surely would turn in part on the “participant’s” proximity to facilitating the sin—and it seems at least debatable whether acting as a photographer is sufficiently proximate.

However one resolved the applicability of a religious conscience objection to avoiding potential discrimination claims, it would still be quite clear that the very adoption of gay marriage laws in no way threatens religious liberty. For every American citizen who objects to gay marriage at least partly on religious grounds, there is probably another citizen who “believes in” gay marriage at least partly on religious grounds. It is certainly true that conservative religion’s support of citizen initiatives against gay marriage has caused some backlash. Thus defenders of laws to protect conservative religionists—like the law recently adopted, and then vetoed, in Arizona—contend that they “see a growing hostility toward religion.” [connect to AZ law blog entry]  But strong feelings describe both sides of the gay marriage debate, and conservative religionists need to realize that expressions of anger, and even of anti-religious feelings, do not threaten religious freedom. Some need to avoid living in the world where they are defined in part by their perception of religious persecution.

But it was the other half of the expressed sentiment that was even more offensive to me. I know a pretty good number of gay people, including some law faculty members here, a lesbian niece, and several other good friends. To reduce their argument for marriage equality to one of promoting sexual license is not only question-begging—for sure—but is also in my view just not true. I just completed Gene Robinson's book defending gay marriage. Robinson is an Episcopal bishop who has a gay married partner. He presents not only a powerful scriptural and religious argument—one that no doubt many at this conference would reject—but also an emotionally very moving defense of gay living and the desire for marriage equality. One might ultimately buy the case for heterosexual normativity, but the suggestion that Robinson is simply contending in favor of "sexual license" is in my mind indefensible.

Albert Mohler, from the southern Baptist theological seminary, recently spoke at the university that sponsored the conference. Tracking with the contention offered at the conference, he asserted in his presentation that "erotic liberty—the unrestrained right to full individual sexual expression, fulfillment, and legitimacy—now routinely trumps religious liberty." I disagreed with Mohler almost as vehemently. It seems to me that we should not think that this is all mainly about erotic liberty or religious liberty. From the perspective of conservative religionists, it seems mainly about resentment that larger numbers than ever are rejecting their particular ideology. From the perspective of religious LBGT’s, it seems mainly about equal citizenship and God being no respecter of persons.

Well, that's the end of my rant.  I support religious liberty, and I share with many at the conference I attended a pretty conservative set of values. But religious pluralism is at the center of our system of religious liberty. And the university sponsoring this conference knows better than most that our system of religious freedom is not about agreement. It is about respecting those who hold conflicting views and at least being open to the idea that protecting their religious freedom claims will benefit the entire nation.

Best regards,


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