Thursday, June 30, 2011

Is gay marriage the end of religious freedom?

Ben and I talk about the post-New York future of gay marriage in our Scripps Howard column this week. This is normally where I print my half of the column and send you to the link to read Ben's half. This week, though, I'll claim the privilege of printing Ben's half—then responding:

Ben responds to the question: Is legalized gay marriage inevitable?
New York's legislature took a vote, but the question of gay marriage is far from settled. Unfortunately, reasonable debate on the subject now appears to be impossible.

Millions of Americans believe gays and lesbians should be free to live as they please -- a huge generational shift -- but that marriage should remain a union between a man and a woman. Marriage serves a vital social purpose of creating stable families. Raising children is perhaps the most important function of marriage (but not the only one). Not just any two parents will do.

A state law -- or a court decision -- won't change those people's minds. But to supporters of this radical concept of "marriage," none of that matters and no good faith disagreement is possible. It's just bigotry.

Fact is, marriage is already in deep trouble in this country. High rates of divorce and out-of-wedlock births have ruined countless lives and torn apart entire communities. Redefining marriage doesn't strengthen the traditional institution so much as signal its irrelevance.

Don't believe for a moment this is simply a matter of "equality." As same-sex marriage becomes routine, it won't be long before other groups demand legal recognition of their own peculiar relationships.

The argument is already well underway. A website called -- established in 2006 by "a diverse group of nearly 20 LGBT and queer activists" -- asserts: "Marriage is not the only worthy form of family or relationship, and it should not be legally and economically privileged above all others."

And get ready for an onslaught of indoctrination and litigation. New York's feckless Republicans say their law is more enlightened than most because churches will not be compelled to perform weddings that offend their doctrines. But the weight of our anti-discrimination laws leans strongly the other way.

In the absence of persuasion, what's left is coercion. The New York law's flimsy religious exemptions will fall within the decade. And marriage as a bedrock institution will be even weaker than it is today. Count on it.
Though we disagree often on matters of public policy, Ben is my friend. Our partnership has endured because I believe him to argue honestly and thoughtfully in our public debates, and because of his generosity and warmth behind the scenes. But, particularly in those last two paragraphs, I believe he is guilty of hysteria.

Ben's suggestion here is that, ultimately, the U.S. Supreme Court will rule that Catholic churches—and other religious denominations—be required to perform gay weddings.

That will never, ever happen. Ever.

I'm not saying that some litigious couple with a daring lawyer won't try to make the case. But I am 100 percent certain that any judge possessing a passing acquaintance with the First Amendment would reject it on its face. And I am even more certain, if that's possible, that such a case would be eviscerated at the Supreme Court—where, after all, six of the nine justices are Catholic. And those justices, it's fair to say, have repeatedly handed down rulings indicating an expansive view of the First Amendment. I doubt they'll let corporations spend unlimited cash on elections but abandon religious freedom. Truth is: religious protections didn't need to be written into the New York law because the First Amendment already does the trick.

Not. Gonna. Happen.

Ben's argument is similar to those made among religious conservatives of late. Lacking persuasive arguments, they've come to persuade themselves that states that allow gay marriages are ... victimizing and oppressing anti-gay-marriage conservatives. They've likened the New York law to North Korean tyranny. They've decried "coercive state power" that wields a Bull Connor-like abusive authority in the service of the gay agenda.

This manages to pull of the neat trick of being both Orwellian and deeply narcissistic. Orwellian, because nobody is being coerced to do anything. As the saying goes: "If you don't like gay marriage, don't get one." No one is being forced to gay marry, or to abandon deeply held beliefs—and there are no dogs, fire hoses, guns, or forced-labor camps being deployed against heterosexuals. For most people, life won't change one iota. For the rest of us, it's changed to the extent that we've been liberated to live our lives with the same level of government recognition and respect as everybody else. The only thing that's being lost, for some folks, is the privilege of having government enforce your beliefs on other people in this particular regard.

And it's narcissistic because gay marriage isn't actually about the people who oppose gay marriage—at all. It's about people who love each other, and choose to share life's tasks with each other. That's it.

There are other parts of Ben's column I'd quibble with. He argues, again, that "not any two parents will do." Even conceding that for the sake of argument, I note that gay couples are among the most prolific and fervent adopters of kids who don't have parents, who have often been bounced around in foster care, who are often old enough or troubled enough or disabled enough that adoption agencies have an impossible time matching them to adoptive parents otherwise. Ask any social worker you know. Ben's vision, I think, condemns many of those children to eternal orphanhood. If it's the case that "not any two parents will do," I still strongly suspect that in most cases any two parents will do better than none at all. Ben lets perfect be the enemy of the good in this case, and thus seems to advocate the kind of social engineering he would otherwise disdain.

But I don't need to rehash all the arguments for and against gay marriage. That's pointless. But I do have to push back against Ben's extreme vision of Catholic priests performing gay marriages under the bootheel of homosexual tyranny. It is ... laughable.

I've told Ben this: I don't expect to persuade him of very much in this life. He'll be conservative, I'll be liberal, and somehow we'll make it work. On this one issue, though, I hope he someday changes his mind, just a little bit. The existence of gay marriage brings a little more freedom into the world. That's normally the kind of thing he'd celebrate. That's one reason why—despite our disagreements—he remains my friend.


Glomarization said...

The legal reason why Ben is out to lunch is this. The church is not the state. The state can be compelled to marry two people -- that is, compelled to issue a marriage license -- without discrimination. As long as two people pay the fees, fill out the paperwork truthfully, and meet the statutory requirements to be considered "competent" to marry (they're old enough, they're not too closely related, and, in most states, they are not the same gender), then the state must issue a license to them. The state is not allowed to deny a license to an otherwise qualified couple for any reason, because that would be denying them the equal protection of the laws, which is illegal.

But a church is not the state. A church can deny a class of person the equal protection of the laws, because a church is a private entity. The exception is in employment, but even there a church has a lot of leeway for coming up with reasons to hire or fire people that ordinary companies haven't been able to get away with since 1964. (A church can't fire someone just because of their race, but it can fire someone because of their religious beliefs.) But performing someone's wedding doesn't even fall into this limited exception, because the church isn't hiring the couple, the couple is hiring the church! Essentially, a couple who hires an officiant is hiring a contractor to do some work for them. A contractor can turn down any job they want; by the same token, you can't force a contractor to do work for you that they don't want to perform.

I feel as though I'm spluttering here because Ben's argument comes from a bizarre premise that would come to pass only if the state and the church were the same entity. You can force the state to do something it doesn't necessarily want to do. If the New York bureaucrat issuing your wedding license thinks you shouldn't get married because your partner is of the same sex as you are, then too bad for that bureaucrat. They will issue the license, or they will lose their job for not performing it.

But if a New York church thinks you shouldn't get married because your partner is of the same sex as you are, then there is no way to force the church to accommodate you. And there never will be. Does Ben envision a future where the state can tell a church how to perform its rites?

Or does he prefer a situation where a church can tell a state how to issue its marriage licenses?

Glomarization said...

I should clarify.

A church can deny a class of person the equal protection of the laws, because a church is a private entity.

By "deny a class of person the equal protection of the laws" I mean "discriminate against a class of people." I repeated the phrase from the paragraph above it for rhetorical emphasis, but I think I lost clarity. A church doesn't literally deny someone equal protection of the laws, because that is something that a government, not a church or individual or business entity, can do.

Rick Henderson said...


So long as you are correct, and the government does not force religious denominations to perform religious marriage services that do not conform with their beliefs, then I'll side with you. The fact that you concede that gay couples will try to force the matter in the hopes that judges will consider marriage an "equal protection" issue is what gives me pause.

We've already seen government labor regulations (under Elizabeth Dole, mind you) used, for instance, to penalize church-based homeless shelters for failing to pay minimum wage to shelter residents who perform some minor housekeeping tasks.

I think advocates for gay marriage (unlike people like me, who are, ahem, agnostic about the issue) might do well to choose different terms. If they fought for "civil marriage," rather than simply "marriage," they might neutralize some opposition. That distinction will not placate all their opponents, but it could help the cause just a bit.

Joel said...

Rick: you overstate the breadth of my concession. But put it this way: if a court ever orders the Catholic church to perform a sacramental service for gay couples, I'll be at the barricades with Ben, even though I favor gay marriage. Why? Because I also favor religious freedom. I feel confident that I will never be required to make good on this promise.

not-just-yeti said...

I thought the worry of churches and some senators wasn't that they'd be required to perform gay marriages -- it was that if they don't, then they might lose other gov't grants or funding? That seems like a much more plausible worry to me, so the clause that churches won't be punished (have benefits withheld?) is a protection that wasn't already implicit in law.

Notorious Ph.D. said...

Dear Ben (via Joel, since RedBlue doesn't allow comments),

Leaving aside the fact that marriages can serve a purpose other than baby-making (I can assure you that they can), when you say this:

"High rates of divorce and out-of-wedlock births have ruined countless lives and torn apart entire communities"

I invite you to say it to my niece (8 1/2) and nephews (7 and 1 1/2), children of my brother and sister, respectively. All three of them are out-of-wedlock (cue fluttering hand) children, yet all living it what I have called a "family" since day one.

I'm sure that they will be surprised to learn how ruined their lives are, and how their mere existence is tearing apart their communities. I know I was.

Shorter Notorious: Just because a family doesn't look like some stereotypical pattern doesn't mean that it isn't a family. It is. And don't mess with mine.

Nick said...

I also doubt the Catholic church will ever be impelled to perform a gay wedding ceremony.

After all, no one's been able to keep that them from molesting or sexually abusing children for centuries; what makes us think they'll feel driven to marry gays after just scant decades of pressure?

Glomarization said...

I think I see the source of confusion here. The "labor regulations" that Rick Henderson brings up are actually Title VII of the Civil Rights Act of 1964. Churches are specifically exempt from prohibitions against employment discrimination if the job in question has to do with the governance of the church. In other words, a church can't be forced to hire a pastor or policy-directing staff member who doesn't follow the religion or tenets of the church, because that would be an unreasonable interference in the church's First Amendment right to follow its own religion. But if it's a question of an employee whose work doesn't have to do to with policy or doctrine -- I think the major case in this area involved a janitor -- the church has to follow ordinary Title VII law as any other employer would. That includes (for crying out loud!) minimum wage rules.

That is an employment discrimination issue and is covered by employment discrimination law. The idea that a religious organization could be forced to change its doctrine or practices is an issue of First Amendment Law. It is not an employment discrimination issue because the church is not hiring someone.

Now, there are laws that butt up against a church's First Amendment right to follow its religious practices the way it wants. You can't use peyote and claim a religious exemption to illegal drugs laws; and you can't ritually sacrifice chickens and claim a religious exemption to animal cruelty laws.

So if a church were to exercise its First Amendment right to refuse to perform a same-sex wedding because of the church's doctrine, would that butt up against New York's law permitting gay marriages? No, because the church is not breaking a law to begin with! There's nothing for the state to force the church to do. Refusing to perform an action is not the same as performing an action that is illegal and then trying to defend the action by claiming a First Amendment exemption to the law.

I think there is also a concern that this situation is analogous to a church losing federal funding because it discriminates in how it distributes its services. (That is, a church that receives federal money to run, say, a soup kitchen can't deny soup to people based on their religion, race, national origin, sex, etc.) This is not a valid analogy, though -- unless a church performs marriages with federal money as a faith-based initiative to provide free or low-cost marriages to people in the community. Even if they did, right now there is no federal protection of same-sex marriages, because DOMA does not permit federal recognition of them.

namefromthepast said...

Agree with you mostly, but using the rationale that the constitution will protect the church is a bit off base.

"..any judge possessing a passing acquaintance with the First Amendment would reject it on its face."

The court you base your argument on upheld the 2nd ammendment by a mere 5-4 margin one year ago.

Anonymous said...

upheld the 2nd ammendment

To clarify, the Supreme Court does not uphold or reject the Constitution or an amendment to it. The Constitution can be changed only by the amendment process, which originates in the legislative branch, in Congress, and then goes to the states.

What the Supreme Court does is test laws against the Constitution, and declares a law constitutional or not. The thing upheld in the gun rights decision here wasn't the Second Amendment, but an individual's right to bear arms in a very specific way that is not spelled out in the Constitution but had been prohibited by the law that the Supreme Court tested.

Lou Covey said...

The core of the problem is the word, "marriage." It is inherently and historically a theological term. With any state defining how that term is applied, they breach the wall separating church and state.
The UK, and many other European states, gets around this issue by defining the relationship as a "civil union" not a marriage.
The use of words aside (and it IS a BIG issue), there is nothing in the NY law that precludes the state from taking fiduciary action against non-compliant religious organizations. It will happen.