Same Sex Marriage and Religious Liberty
In his “Beliefs” column in the NYT, Peter Steinfels writes about a recent conference of legal scholars that examined the potential impact of same-sex marriage on religious liberty:
Is same-sex marriage on a collision course with religious liberty? It wasn’t surprising that before the constitutional amendment banning same-sex marriage died in the Senate this week, several senators supporting it raised that danger.
But when highly respected legal experts on civil liberties, including ones favoring same-sex marriage, raise the same possibility, their concerns cannot be dismissed as partisan debating points.
Marc D. Stern, whose many years handling religious freedom cases for the American Jewish Congress have made him an expert in the area, can hardly be identified as a conservative agitator. Yet he firmly believes that legal recognition of same-sex marriage will make clashes with religious liberty “inevitable.”
“No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them,” Mr. Stern has written. But for other individuals and institutions opposed on religious grounds to same-sex marriage, its legal acceptance would have “substantial impact.”
He has in mind schools, health care centers, social service agencies, summer camps, homeless shelters, nursing homes, orphanages, retreat houses, community centers, athletic programs and private businesses or services that operate by religious standards, like kosher caterers and marriage counselors.
Hat Tip: Mirror of Justice
One of the real problems with organized religion is that it too often enjoys privileges without any real cost to its members. We might say Christianity in particular. Jesus’ warning that “the slaves are not better than their masters” has had little meaning since the fourth century.
For the most part it has been missionaries from dominating countries imposing their cultures and making the inhabitants its servants instead of vice versa as the gospel commands.
As religions have made no distinction between God and Caesar they certainly have forgotten their God as Christians presided over slavery in this country and the Holocaust in Europe.
Maybe they should lose their tax exemption and learn to struggle like their congregations.
Sam:
As a Catholic priest who happens to be gay and has been put through a heresy trial for it, I must wholeheartedly agree with the point you make.
You clarify exactly what the problem is that we face in the Church today, and have since the fourth century.
Bill:
Sorry. I don’t know where I got the name ‘Sam’.
What on earth does the church’s tax exemption have to do with your “heresy trial”? Or must everything be understood through your autobiography?
mlj:
It seems to me that the topic is “Same sex marriage and religious liberty.”
Sorry if I offended.
This op-ed piece was manipulative in portraying the problem as a clash between same-sex marriage and religious practices. The specific issues involve, at most, conflicts between antidiscrimination law and religious practices, not same-sex marriage and religious practices. Marriage does not create a right not to discriminate; antidiscrimination law does that.
The piece’s exhibit #1 (in a passage not reproduced above) was Catholic Charities’ demand in Boston to be exempted from antidiscrimination laws that prohibit adoption providers from discriminating on the basis of sexual orientation. But those antidiscrimination laws existed years before same-sex marriage in Massachusetts. Indeed, California has not yet authorized same-sex marriage, yet the Catholic Bishop there has started making the same complaint.
More fundamentally, there is a basic misunderstanding (or intention dissembling) about adoption and marriage in the U.S. Unlike much of Europe, in the U.S., adoption is not a right that flows from marriage. Only a couple of states ban gay people from adopting children, but only Massachusetts allows same-sex marriage. **Legally speaking,** these are entirely different issues.
Mr. Steinfils’ laundry list of other examples, as well, all involve potential conflicts between antidiscrimination laws and religious practice–i.e., laws generally prohibiting people from discriminating against gays and lesbians and making no exception for supposedly faith-based discrimination. (I do not say “religious liberty” because since at least 1990, the U.S. Supreme Court has made clear that, for constitutional purposes, religious liberty does NOT include the right to exempt oneself from generally applicable, conduct-regulating laws–a point Mr. Steinfils also ignores.)
At any rate, the simple solution to the problem that Mr. Steinfils has identified, though misframed, is to exempt religious objectors from antidiscrimination laws. We can simply allow, for example, sanctimonious pharmacists to refuse to fill gay men’s prescriptions for AIDS drugs, if impairing the functioning of our health care system would make Mr. Steinfils feel more holy. I would oppose that solution, but it would eliminate the kinds of conflicts about which Mr. Steinfils complains. Notice that solution has nothing whatever to do with whether a state authorizes same-sex couples to marry.
But that is Mr. Steinfils real game. He doesn’t really care about these conflicts in themselves. He did not suggest the obvious answer of exemptions from antidiscrimination laws. His focus isn’t really on the legitimate issue of the potential conflict between antidiscrimination laws and religious practices. His real objective, made clear in the opening paragraph of his piece (not reproduced above), was to trump up this issue as a supposed justification for the ridiculous federal marriage amendment. Rather than offer the direct solution to his misframed problem–exempting religious objectors from antidiscrimination laws–he would prefer to ban all same-sex marriage, which, when occuring between two same-sex spouses, does not itself impose any burden anyone’s religious practices. As even Mr. Steinfils concedes, no one is ever going to require a religious official to perform a same-sex marriage. Mere knowledge that the gay couple down the street got married is NOT a cognizable burden on anyone’s religious practices, but that’s really what Mr. Steinfils is annoyed about.
In other words, Mr. Steinfils is engaged in dramatic overreaching and manipulation in a vain effort to justify the unjustifiable amendment. But, sadly, such has come to be characteristic of supporters of the amendment, since they really have no sound argument as to why states are incapable of addressing marriage, as they always have. Supporters lack cogent arguments in favor of the amendment because, at base, it is simply a GOP strategem for increasing turnout among antigay bigots in the upcoming elections. (And, yes, if the only reason you are showing up to vote on election day is to fight homos, then you are a bigot.)
Where do you find Peter Steinfels’s support for the FMA in this column?
The first two paragraphs disclose that his entire endeavor was to reinforce the proponents of FMA.
Your ability to freely express yourself by swinging your arms stops at the end of my nose. Your religious choice to not elect medical care stops when you are affecting the health of someone else, particularly a minor.
Your religious liberty becomes unwarranted license when it results in the denial of a liberty to others simply because you find that liberty personally offensive and are worried that you might have to recognize it from a legal perspective.
If an agencies that are worried about being forced to recognize the legal standings of same-sex marriages (or equivalents) avails themselves of tax dollars or other forms of government aid, then said agencies give up their right to discriminate in a manner that is not legal. Colleges and universities cannot deny taxpayer supported services, facilities or other aspects of their charter to non-heterosexuals strictly on the basis of their sexual orientation.
If these agencies do not like this, then they are perfectly free to choose not to accept taxpayer-provided assistance. As the British are prone to say: “If you take the Queen’s shilling, then you must do the Queen’s bidding.”
No, Stephen, I don’t see it. Unless one assumes that raising questions about the wider legal ramifications of same-sex marriage entails defacto support for the ammendment, the text doesn’t support your conclusion.
Mr. Gallicho, you’re entitled to your interpretation, and I’m entitled to mine. Your fellow contributor is free to disavow FMA any time he likes. If he has done so, feel free to provide a link. I do not know him, nor do I regularly read this site. But until then, I am content to interpret his desire explicitly to bolster supporters of FMA as support for FMA. You may disagree, although quibbling over this point rather than responding to the substance of my post or his column strikes me as a diversion on your part and a waste of my time.
Loyalty oaths or demands for disavowal are not my thing. And my views on homosexuality; the best ways to define and protect the rights and dignity of gay and lesbian persons; the moral, social, and political wisdom of legal provisions for civil unions and same-sex marriage; and whether such provisions ought to be the work primarily of legislatures or of courts are all too complicated for summary here.
But to relieve Mr. Clark, let me assure him that I had no interest in taking sides on the Federal Marriage Amendment proposal, which struck me as a calculated political maneuver and not one that in any way redeemed this Administration from its morally and politically disastrous policies around the world .
Quite the contrary. I wrote my column — not an op-ed piece, by the way, but a regular feature that appears in the news pages of the New York Times — on that topic because I thought the issues raised by these legal thinkers were important and worth drawing attention to. I also felt it important to distinguish their arguments, whatever their ultimate merits, from the immediate political uses that could be made of them. By explicitly mentioning statements about religious liberty by supporters of the marriage amendment and the conservative auspices under which these papers were first publicized, I was acknowledging those uses and urging readers to look beyond them. I might have expended a few more of my limited number of words on that aspect, had not the FMA already gone down to defeat before my column was filed.
Mr. Clark mades a fair point about the real issue being anti-discrimination laws and religious practice rather than same-sex marriage and religious practice. That was Cass Sunstein’s observation, which I made sure to include in the column. However, Professor Sunstein, having generously delved into the topic a little more deeply, allowed that same-sex marriage would at least significantly increase the existing tensions and complexities surrounding anti-discrimination norms and religious liberty. Much of Chai Feldblum’s argument, which at the time of my writing she was still revising, could be read in the same light.
Those truly interested in the question should not stop with my column but read into the legal papers themselves, which can be found on the web.
Mr. Steinfels,
Thank you for the clarification. I won’t quibble about whether your piece actually said some of the things you now say it said, but I’ll accept the clearer statements you now have made.
That having been said, at least two problems remain. First, the paper on which you so centrally rely, that of Prof. Feldblum, says virtually nothing about conflicts being caused specifically by same-sex marriage, at least not in the draft form available on the web. (http://www.becketfund.org/files/92708.pdf). Her examples of conflict all involve antidiscrimination cases that arose in jurisdictions that did not authorize same-sex marriage, and those conflicts had nothing to do with same-sex marriage. I don’t find her ever explaining in the available draft how same-sex marriage increases the potential for conflict, which already exists in jurisdictions that ban discrimination based on sexual orientation, gender, marital status, and/or religion. Because, as I have said, marriage itself creates no obligation on the part of private parties to acknowledge the marriage, any conflict comes from pre-existing antidiscrimination law.
Second, her claim that such conflicts present a “zero-sum” trade-off, a point that you emphasize from her piece, rests on a very contestible premise and actually is not making the point for which you cite it. She argues that whether government is banning same-sex relations, leaving them completely unregulated, or affirmatively protecting them from discrimination, government is necessarily taking a moral position on homosexuality. In that, she is rejecting classical liberalism, a position at odds (she acknowledges) even with Michael McConnell, beloved conservative scholar of religious liberty and now federal judge. I don’t agree with her either. If the government takes the position that the decision whether to remain celibate or be sexually active should be made by the individual actor rather than coerced or decreed by others, government is not taking a moral position as to whether homosexuality is good or evil because it hasn’t even taken a position as to what the individual actor should choose. At most, the government has decided that allowing people either choice is not sufficiently threatening to the public to justify regulation. At any rate, when Prof. Feldblum speaks of a “zero sum” situation, she is making the very controverisal claim that the government has no choice but to take a moral position on the status of homosexuality. I think you are taking her out-of-context and using that quote to suggest the conflict between religious adherents and same-sex marriage is a “zero sum” tradeoff. That was not the point of her “zero sum” statement.
Steve
The piece’s exhibit #1 (in a passage not reproduced above) was Catholic Charities’ demand in Boston to be exempted from antidiscrimination laws that prohibit adoption providers from discriminating on the basis of sexual orientation. But those antidiscrimination laws existed years before same-sex marriage in Massachusetts. Indeed, California has not yet authorized same-sex marriage, yet the Catholic Bishop there has started making the same complaint.
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They may have existed “years before”…. but until homosexuals can marry you can’t compare apples to apples!