I think we've probably exhausted this topic for now, but I didn't want to let E.D. Kain's series of posts about the conflict between gay marriage and religious liberty, re: the situation the Catholic Archdiocese of Washington, DC, pass without note. E.D., please note, is a supporter of same-sex marriage, and believes the Catholic Church is very wrong to oppose it. But he's starting to see that gay marriage really is a threat to religious liberty. Read him here, here, and finally here. Excerpts from his series:
Religious organizations would not be forced to provide space or perform marriages for gay couples. They would still be required to do a number of other things, including provide benefits to gay couples, offer other charitable services to gay people, and so on and so forth. Again - I think they should do this, but what I think really isn't the issue here. The issue is whether they should be required to by law. If they are required to follow specific rules in order to receive federal funds, and they believe that those rules are in conflict with their beliefs, then they will have no choice but to refuse those funds.You can't really have it both ways. These funds are used to provide for the poor. You can't complain that the Church is awful for receiving the funds on the one hand and awful for not providing these services on the other. The two are connected, and if the law makes it impossible for the Church to do both, then there really is little that can be done except change the law. Or change the Church. And so this comes back to a question of religious liberty.
And:
I believe the Church and other groups that oppose gay marriage are wrong and that someday they'll look back on all of this with the same shame opponents (and their ancestors) of racial equality look back on the days of segregation. But that doesn't mean we approach each battle in this war with the attitude that so long as marriage equality is reached, all other considerations are negligible. If you want a much harder path going forward, then by all means give your opponents reason to believe that their religious liberty actually will be infringed upon. Most of the time that argument is a straw man. But not always. Giving it credence is probably not a good long-term strategy.
I appreciate that E.D., unlike so many gay marriage proponents, recognizes that religious liberties are at risk from the march of gay marriage rights, and that this really does involve a conflict of rights claims. At some point, this really is a zero sum game. The usual cry that goes up from gay rights backers is that no pastor is going to be forced to marry a gay couple or be censored if he preaches against homosexuality, so there's no problem at all. That's simply untrue. I don't think, though, that E.D. fully understands (yet) how much of a rollback in religious liberty is at stake in this fight. It's one thing if the boundaries of gay rights are set by statute, as in the DC case. It's another if they are set by a court in a constitutional case. In the former, exemptions for religious organizations can be carved out -- but if the Supreme Court decides that gay marriage is a constitutional right, then religious organizations will be given much less room to move, and there's nothing they will be able to do about it.
I strongly encourage you to read Chai R. Feldblum's paper on the conflict between gay rights and religious liberty. Feldblum is a Georgetown Law professor, a lesbian and a gay rights activist. She was also raised in an Orthodox Jewish home, so she understands the issue from both sides. Here are relevant excerpts:
I believe those who advocate for LGBT equality have downplayed the impact of such laws on some people's religious beliefs and, equally, I believe those who have sought religious exemptions from such civil rights laws have downplayed the impact that such exemptions would have on LGBT people.
Feldblum says that civil rights laws are unavoidably built on a moral assessment by the government about the nature of the thing at the crux of the civil rights claim (e.g., race, sexual orientation). If the government chooses not to recognize gay marriage claims (for example), it is making a moral judgment about homosexuality -- and vice versa. This is unavoidable, she says -- and she's right. More:
Once we acknowledge how moral assessments necessarily underlie civil rights laws, it becomes easier to understand how a law prohibiting discrimination based on sexual orientation might shock the system of some members of society. ... Given this reality, we are in a zero-sum game: a gain for one side necessarily entails a corresponding loss for the other side.
And:
Thus, for all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried straight couples and all gay couples, this is a point where I believe the "zero sum" nature of the game inevitably comes into play. And, in making the decision in this zero sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.
Feldblum, by the way, is President Obama's nominee to head the EEOC. Elections have consequences.
I also strongly urge you to read the paper Marc D. Stern, the chief counsel of the American Jewish Congress (not an organization on the religious right) and one of the foremost religious liberty experts, wrote explaining the threats to religious liberty from the expansion of gay rights. This is a detailed, substantive analysis. Stern is not as confident that free speech rights for religious folks will be protected in re: homosexuality. For example, these questions arise out of employment law:
What of the church as employer? And what of para-church agencies; especially those offering primarily secular services, such as health care, to the general public? Could an employee or client of such an agency successfully assert a hostile environment claim because the employer actively campaigned against gay rights or gay marriage and asserted that these practices were irredeemably sinful? Would it matter whether the speech was not aimed at the workplace? Conversely, would an employee of a para-church institution have a right to be accommodated in his religious beliefs of support for gay rights or same-sex marriage? Could an employee of Catholic Charities acting from deep religious conviction wear a gay rights t-shirt or sign a newspaper ad in favor of abortion choice and be denied religious accommodation?
More:
Conflicts between the helping professions and religious groups can be expected to increase. How will providers propose to deal with same-sex couples who come for marriage counseling? Will they refuse to provide counseling to such couples? Would that violate the public accommodation laws? Probably. Will they try to dissuade them from same-sex activity? Would that be considered a breach of professional standards, such that it could result in the loss of a professional license?
Still more:
Civil rights law accepts as a given that a person may be denied rights protected by the statute by the creation of a hostile atmosphere as well as by formal exclusionary acts. This is most well known in employment, but it is true under almost all anti-discrimination statutes. It is explicit under the federal fair housing statute which provides that it is illegal to make any "statement ... with respect to [sale or rental of housing] that indicates any preference, limitation or discrimination."102 As the Second Circuit recently held, the fair housing statute protects against the "psychic injury" caused by discriminatory speech. That clashes between the civil rights of participants in same-sex marriage and religious liberty are inevitable is shown not only by the cases discussed below, but by recent clashes over the scope of proposed legislation to protect religious liberty. These were won by those supporting unbending civil rights protection--chiefly gay rights--in a rout.
I'll stop there, but again, I urge you to read both papers. The conflict between gay rights and religious liberty is deep, serious and irresolvable to the satisfaction of both. And it is far more serious than media coverage has indicated -- because, I believe, either the media do not want the public to grasp how serious the conflict is, because it might hurt the gay rights cause, or (as is more likely) journalists are themselves uninterested in the question because they don't want to have their settled opinions challenged.
UPDATE: Mark Thompson thinks I'm full of beans. He may be correct. Lawyer-readers, please advise.
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I'm sure Chris means "within the United States."
Even so, I suspect Catholic priests in the Netherlands, Belgium, Spain, Canada, South Africa, Norway, and Sweden are in no danger of being forced to perform a same-sex marriage. They are certainly in no danger of this in Massachusetts, Connecticut, Iowa, Vermont, or New Hampshire.
Nor do I think any member of the clergy is in any danger of being censored for preaching against homosexuality. You know, if that were the case, you'd think that laypeople would be at even greater risk. There are several people who post here who are quite vocal in their criticisms of homosexuality and gay people. Since they're not getting calls from the government telling them they'd better tone down their rhetoric or face the consequences, I don't think the clergy need worry.
I have several hats which I would happily consume were it to happen in the United States.
Can somebody please explain to me why those against granting gays the same rights to State-Sanctioned Property Rights (aka marriage) don't apply equal fervor against the following things that society has heretofore accepted, and all of which seem to threaten traditions surrounding marriage just as much? :
1) wanton adultery
2) wanton divorce
3) adoption of children by gays
4) biological reproduction by gays (such as that daughter of Dick Cheney!)
Or is it because self-described conservatives like to do the above wanton things so wantonly? And that power is really about telling other people what they can and can't do?
It's called selective morality. In the Catholic Church, conservatives call liberals cafeteria Catholics without the slightest sense of irony that they, themselves, pick and choose which outrage is in vogue at any given moment.
It's called selective morality. In the Catholic Church, conservatives call liberals cafeteria Catholics without the slightest sense of irony that they, themselves, pick and choose which outrage is in vogue at any given moment.
Theod, no answer to your question would change the answer to the question Dreher posed in the first place, but your question would be a fine one to present to a legislature. There is, however, a problem with demanding marriage as a matter of "equal protection of the laws." Equal protection of the laws protects people who are "similarly situated." The law discriminates in all kinds of ways, without violating the Fourteenth Amendment. As soon as the amendment passed, the courts had to figure out a pattern of jurisprudence which would, e.g., allow for only those over a certain age being able to vote. After all, that means five year olds do not enjoy equality of voting rights with 35 year olds. So, discrimination is either subject to "strict scrutiny" because it disfavors a "protected class," or it is subject to "rational basis" analysis, which can be all over the map.
Whatever the merits of allowing marriage licenses to same-sex couples, you can't really claim unequal protection of the laws merely because you don't get what you want. Any person who calls themselves "gay" could get a marriage license in any state in the country. No law says that gay people can't marry. Gay people don't want to marry. They want to redefine marriage to include what they do want. That's a reasonable proposition. But first, please define what marriage is. Define it in precise terms which are not subject to infinite amplification, OR, admit that it is whatever the law says it is -- e.g., the union of one man and one woman, subject to amendment if the legislature sees fit to do so. The current definition does not exclude any person, it excludes an infinite number of permutations our culture has not chosen to recognize.
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