Incompatible Freedoms?

Reasonable people can disagree about the merits of same-sex marriage. Reasonable people should recognize, though, that the adoption of same-sex marriage will bring a wave of religious-liberty disputes. That is not necessarily a compelling reason to oppose same-sex marriage, but it is a reason to pay more attention to the religious-liberty implications of the emerging legal order.

Few same-sex-marriage advocates favor a diminishment of religious liberty for its own sake. The problem is rather that the institution of same-sex marriage will need to rely heavily on state power. As a legal institution, heterosexual marriage encounters relatively little resistance from the citizenry because it is grounded not just in legal norms, but in social, cultural, religious, and biological norms as well. Same-sex marriage still encounters significant resistance from the citizenry, in part because it conflicts with the traditional religious conception of marriage, but also because it lacks the broader social and cultural supports that heterosexual marriage has, even outside the religious context.

It is not enough for society to respond to those who object to same-sex marriage simply by saying, “If you oppose same-sex marriage, don’t enter into one.” After all, those who object to same-sex marriage make up many of the associations that constitute civil society. Once the state has expanded the legal definition of marriage to include same-sex couples, the pressing task will be to determine how aggressively to enforce that definition. Should the government require the extension of employee benefits to same-sex spouses? Should it take away an organization’s tax-exempt status if it refuses to recognize same-sex marriages? Should it impose liability on professionals who refuse to perform same-sex marriage ceremonies? To what extent should it enforce legal norms associated more tangentially with same-sex marriage, such as those that forbid antigay speech in school or the workplace, or prohibit employment discrimination against gays by organizations that consider homosexuality immoral?

Same-Sex Marriage and Religious Liberty is an indispensable new book that tries to address some of these questions. The legal scholars who contributed to the volume were asked by the editors “to take as a given that the legal definition of marriage has been expanded to include same-sex couples, and then to explore the religious-freedom implications of that legal change.” The contributors carefully trace the legal doctrines that will shape this battle in the courts and legislatures.

To their credit, none of the contributors—several of whom support same-sex marriage—attempts to gloss over the very real threat to religious liberty posed by efforts to ensure the equal treatment of gays and lesbians in our society. The broad range of potential conflicts between a state committed to same-sex marriage and citizens opposed to it may surprise readers. In these various contexts, what is at stake for religious liberty? Marc Stern of the American Jewish Congress puts it bluntly:

The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The remaining question is whether champions of tolerance are prepared to tolerate proponents of a different ethical vision. I think the answer will be no.

Some activists insist that organizations that refuse to recognize same-sex marriage should lose their tax-exempt status. They cite as precedent the IRS’s withdrawal of tax-exempt status from Bob Jones University because of the school’s ban on interracial dating. Douglas Kmiec writes that it is not hard to imagine that churches could “be targeted for similar legal penalties and disadvantages.” Even some who favor same-sex marriage recognize the risks of this approach. Jonathan Turley, for example, argues that the denial of tax exemptions might give “the government universal influence in the composition and beliefs of political and religious groups.” Turley notes that the loss of the exemption would be the death knell for some groups, as “few organizations can thrive without tax-exempt status and fewer can effectively compete in the marketplace of ideas when outspent by mainstream groups with such status.” If anyone is under the mistaken impression that our nation’s robust tradition of religious liberty is unshakable, this collection of essays will provide a needed dose of reality. But the overarching tone of the book is not hopeless, nor should it be.

The project of this book is to survey the contours of a new legal landscape. It is therefore less concerned with politics than with law. It remains for others to propose the political argument on which the case for religious liberty will be based. Two related propositions, I believe, will be central to that argument.

First, nondiscrimination laws should be focused on ensuring access to essential goods and services, not on preventing all affronts to a person’s sense of dignity. The latter aim would provide no meaningful check on state power. The requirement that the state protect everyone from any felt offense could be used to justify any conceivable intrusion on liberty. Nondiscrimination laws should function as a scalpel, not a hammer. The state needs to define its objectives precisely before it limits the moral autonomy of nonstate actors. Chai Feldblum’s approach, centered as it is on the individual’s sense of dignity, does not bode well for religious liberty:

If I am denied a job, an apartment, a room at a hotel, a table at a restaurant, or a procedure by a doctor because I am a lesbian, that is a deep, intense, and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get a job, an apartment, a hotel room, a restaurant table, or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens.

No one can deny the hurt experienced in these situations, but that doesn’t mean that using state power to preclude the possibility of such harms is a wise course for society. Feldblum’s approach leaves little room for religious liberty: religious exemptions would be available only to those organizations that are “clearly and explicitly...designed to inculcate a set of beliefs” and that “seek to enroll only individuals who wish to be inculcated with such beliefs.” No organization designed to serve the broader society would qualify.

The better approach is to focus on whether a person is deprived of meaningful access to a good or service that is essential to participation in society. Several of the contributors to this book embrace different versions of this approach. As Douglas Laycock explains, “What is most importantly at stake for each side is the right to live out core attributes of personal identity,” and thus “the right to one’s own moral integrity should generally trump the inconvenience of having to get the same service from another provider nearby.” In the Jim Crow South, segregation and subjugation were so pervasive that ensuring access to goods and services required aggressive and sweeping legal intervention. Gays and lesbians do not face comparable social exclusion today.

The second proposition on which a case for religious liberty must be based: Overly aggressive nondiscrimination laws threaten the common good. We need more than a balance sheet comparing the harm suffered by an individual religious believer forced to act against his or her conscience with the harm suffered by the person who was denied a service based on his or her sexual orientation. We also need an account of the type of society that is most conducive to the common good.

There is a close relationship between social health and the maintenance of a robust web of freely chosen associations known as “civil society.” As Stephen L. Carter wrote in an essay in Christian Perspectives on Legal Thought (2001), “The idea that the state should not only create a set of meanings, but try to alter the structure of institutions that do not match it, is ultimately destructive of democracy because it destroys the differences that create the dialectic.” The application of nondiscrimination laws to the institutions of civil society threatens those institutions’ independent normative authority, thereby undermining their ability to empower citizens, through a shared sense of identity, purpose, and meaning, to participate in projects that are larger than themselves.

The institutions of civil society are not simply vehicles for the implementation of widely held norms; they are also bulwarks against the imposition of widely held norms. This does not mean that institutional freedom should be unfettered. It does mean that using state power to subvert the moral authority of these institutions comes at a significant social cost, no matter how noble the purpose. Eventually, proponents and opponents of same-sex marriage will need to have a conversation about their shared interest in a society that ensures room for dissent from majoritarian norms. Consider this book the conversation-starter.

Published in the 2009-10-09 issue: 

Robert K. Vischer is the dean and Mengler Chair in Law at the University of St. Thomas School of Law in Minneapolis.

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