In recent essays here at Public Discourse, Mark Regnerus argued that same-sex marriage would harm marriage for everyone, and John Smoot argued that it would be bad for children in particular.
Today I want to show the damage that redefining marriage does to
religious freedom. At bottom, even the defense of religious liberty is a
struggle over what is true and false about the meaning of marriage.
Should the truth about marriage—that it unites men and women so that
children will have fathers and mothers—be defied by the laws of the
land, we cannot expect the religious freedom of those who believe in
that ancient truth to be respected under the new dominion of falsehood.
After all, if redefining marriage to include same-sex couples accords
with justice and moral truth, there is no good reason for the new legal
order to make room for “conscientious” religious dissenters, for
clearly their consciences are malformed and unworthy of respect. Thus
the fate of religious freedom, for scores of millions of Americans,
stands or falls with the fate of conjugal marriage itself.
Some astute observers have noticed the dimensions of the problem and
called attention to it. The Becket Fund for Religious Liberty filed a brief
in both marriage cases now pending in the Supreme Court, arguing that
the Court should not interfere with democratic legislative processes in
this field, because only such processes can result in public policies
that will prevent church-state conflict in the future. The brief
describes many of the problems I will discuss below, but in the end I
think it is too hopeful that same-sex marriage and religious freedom may
be reconciled by lawmakers to any significantly greater extent than by
judges.
Two groups of prominent religious liberty scholars (one led by Robin
Fretwell Wilson, the other by Douglas Laycock) have written letters
(such as this one
from Wilson’s group) to state legislators and governors considering
same-sex marriage bills, imploring them to include various statutory
provisions that would afford some protection to religious freedom. Both
groups have signally failed to achieve much, if any, meaningful
accommodation of religious freedom in the recent legislative enactments
of same-sex marriage in New York, Minnesota, Rhode Island, and Delaware.
The victorious legislators either do not see the conflict, don’t care
about it, or actually welcome its arrival, relishing the further
victories yet to come over the “bigotry” of religious dissenters. The
last of these possibilities may be the likeliest, as Robert P. George suggested nearly a year ago here at Public Discourse. If so, our situation is dire indeed.
The “Wedding Day” Is Not the Real Issue
A great show is sometimes made in legislatures of how generously the
advocates of same-sex marriage are willing to treat their adversaries,
by assuring them that no Orthodox rabbis or synagogues, and no Catholic
priests or parish churches, will ever be dragooned into giving their
blessing to same-sex unions under the name of marriage. This sort of
statutory “exemption” has become routine.
But the exemption is pointless because it is already accomplished by
the First Amendment. No one thinks that any state could constitutionally
coerce dissenting ministers, imams, rabbis, or priests into presiding
over same-sex wedding ceremonies, or commandeer their sacred places of
worship for such ceremonies.
Yet by pretending that such fears are in some way valid or genuine,
same-sex marriage advocates keep the focus on them, cultivate the
impression that their adversaries are worried about this matter and
practically nothing else, and then declare that they have “compromised”
in some full and fair way with the only real concerns on the other side
by offering redundant legislative assurances. Every single state (as
well as the District of Columbia) that has enacted same-sex marriage
through its legislature has play-acted this dumbshow.
No state, on the other hand, has credited or accommodated the
religiously grounded objections of other private actors—professionals or
small business owners—to being dragooned into offering their services
on the wedding day to same-sex couples. There are several well-known
cases of bakers, photographers—even a religious nonprofit property
owner—facing grave legal jeopardy for their refusal to offer their
services or facilities in contradiction of their felt obligations to
witness to the truth about marriage as it is taught by their faith.
When the above-mentioned religious liberty scholars have pleaded for
accommodation of such persons and groups, they have gotten exactly
nowhere. It seems that for same-sex marriage proponents, the religious
freedom of saying “no” to same-sex weddings belongs only to “religious
organizations,” not to similarly situated religious persons, despite the obviously personal character of the First Amendment’s free exercise of religion.
But the deepest conflicts between same-sex marriage and religious freedom will not occur on the day that couples tie the knot.
When the Honeymoon Is Over
Churches and other religious organizations are major employers. They
operate schools, universities, hospitals, hospices, and clinics; social
service agencies, retirement homes, eldercare and childcare facilities,
food pantries, and soup kitchens; and other charitable ministries of
every kind. They employ teachers, doctors, nurses, psychologists,
counselors and clinicians, caregivers, food-service workers,
housekeeping and grounds staff, even pool lifeguards. These religious
ministries typically present themselves as equal opportunity employers,
and they mean it.
Can they continue to do so in the redefined-marriage legal regime? If
a church ministry hires someone in a same-sex marriage, or employs
someone who enters such a marriage; or if it declines to hire such a
person, or treats him or her adversely if already employed—in any of
these scenarios there is trouble ahead, if federal, state, or local
employment law considers it wrongful discrimination to treat persons in
same-sex marriages differently from men and women in marriages.
The “ministerial exception” to employment discrimination law, affirmed 9-0 by the Supreme Court in the Hosanna-Tabor
case in January 2012, will be no protection at all, since there is no
way to shoehorn all these roles and functions into that exceptions
category, no matter how broadly “minister” is defined. But to date,
there is no state that has seen fit to accommodate the religious
conscience even of avowedly religious ministries in this respect, let
alone the consciences of religious persons doing business in the
for-profit and nonprofit sectors.
Or consider public accommodations law, which can cover equal access
to healthcare services, marriage and family counseling, daycare,
adoption services, as well as religious schools and universities that
are open to taking students of every faith or none at all. Churches and
other religious bodies are among the largest providers of health, social
service, and educational opportunities, but they understandably
consider themselves obliged to provide them in keeping with the moral
dictates of their faith.
The clash between the redefinition of marriage and religious liberty
in this area was painfully evident when Catholic Charities in
Massachusetts, after a century of operating an adoption agency that
matched children with new parents, ceased offering this service to the
community rather than be forced by the state to place children with
same-sex couples contrary to Catholic teaching. Just two
states—Connecticut and Maryland—permit religiously affiliated adoption
and foster-care agencies (but no others) to place children exclusively
with married moms and dads. But even this came at a price no other
adoption agency must bear: these agencies are now ineligible for any
share of public funds that the states may provide.
Consider also the laws at various levels of government against
housing discrimination. If a religious university offers housing to
married student couples, will it be charged with discriminating if it
denies such housing to same-sex married couples? Only two states with
same-sex marriage—New Hampshire and New York—make any exemption for
“religious organizations” in such situations, and it is not exactly
settled that a university such as St. Anselm or Fordham would fall under
these exemptions.
Control of Education
And on the subject of universities and schools, consider the matter
of the accreditation of higher-ed programs and whole institutions, and
the control of curriculum in primary and secondary education. Already we
can see individual degree programs compelled by accrediting bodies, in
fields such as counseling, to conform themselves to the transformed
understanding of marriage and sexuality, as some religiously dissenting
students have discovered to their cost.
Whole colleges and universities are themselves accredited by regional
private accrediting associations—and the accreditors are in turn
accredited by the US Department of Education, and recognized by the DOE
as authoritative regarding which institutions grant valid degrees and
enroll students eligible for federal aid of various kinds. If and when
the regional accreditors and the DOE decide that the norm of “respect”
for same-sex marriage must pervade higher education, which religious
colleges and universities will keep standing firm in the winds that will
blow?
In K-12 education, state authorities typically mandate that all
schools, public and private, religious or secular, meet certain
curricular goals and standards. This is fairly uncontroversial when it
comes to math, science, even history. But will states mandate the
teaching of the new understanding of marriage and family, and force it
on religious schools? The possibility is not terribly remote.
The Tax Man Cometh
Finally, consider the matter of tax exemption. In its 1983 ruling in Bob Jones University v. United States,
the Supreme Court affirmed, by an 8-1 vote, the power of the Internal
Revenue Service to declare that it was “contrary to public policy,”
since the passage of the 1964 Civil Rights Act and the Court’s own 1967
decision in Loving v. Virginia overturning bans on
interracial marriage, to grant tax-exempt status to a religious
university that admitted both white and black students but forbade them
to date and marry one another. All nine justices presumed the sincerity
of the university’s stated religious rationale for its policy, and none
of them (even the lone dissenter) thought it mattered a bit. The Court’s
decision forced Bob Jones University to change its policy.
One can deplore that university’s former policy and applaud the change that was forced on it. But we must recognize that the Bob Jones
precedent is a loaded gun waiting to be picked up and used against
religious schools, universities, social service agencies, hospitals and
clinics, and charitable ministries of all kinds. If same-sex marriage is
the new normal, and dissent from it on religious grounds is the new
bigotry, then with a stroke of a pen the IRS can destroy the tax-exempt
status of every para-church institution in the country that is not on
board with the redefinition of marriage—and perhaps of the core
institutions too, the churches, synagogues, and mosques themselves.
The Law as Moral Teacher
And after all, if the new meaning of marriage represents progress toward a more just society, why shouldn’t
the coercive power of the state be deployed in all these ways?
Religious freedom has its limits, it will be said. Correction: This is
being said, in all the liberal-dominated legislatures where marriage
has been redefined in recent years, which is why so little accommodation
is being made for religious conscience, and why such tiny
accommodations as have been made are almost certainly doomed to be
evanescent, repealed in coming years as the vestiges of old compromises
with backwardness that are no longer necessary.
And the Bob Jones example points up the perfect reasonableness of this view, if
those who hold it are right about marriage: we do not make room even
for “private” bigotry in our society without imposing costs, not even
bigotry with a religious basis.
The transformation of the law to redefine the meaning of marriage will be bad for marriage, bad for children,
and very bad indeed for those people of faith who want to maintain
their faith’s teaching on marriage, in their religious institutions and
in their work. The preservation of meaningful religious liberty, it
turns out, is inseparable from the preservation, in our legal order, of
the truth about marriage. They stand or fall together.
