When Jonathan says the Brookings Institution panel was A Great Debate, he isn't kidding. Jon and David Blankenhorn articulated the philosophical change in style they are aiming for: a discussion that pits two good things against one another (in Blankenhorn's words) rather than one about bigots against perverts (Jon).
If that were all that was said, the debate would have been worth everyone's time.
But another theme emerged, and it will be the crux of the political problem if the compromise gets any takers -- as I hope it will. In order to get the federal government to accept state laws recognizing same-sex couples, states would have to enact robust religious conscience laws making clear that religious organizations would be protected against lawsuits forcing them to recognize same-sex relationships.
But "conscience" is not an organizational attribute, it is a personal one, and the compromise would apparently have to stretch far enough to reach individuals. Everyone agrees the government may not intrude in the sacramental role of religious organizations, but what about religious individuals who function in the civil realm? They claim that their religious beliefs against same-sex marriage would prohibit them from performing their non-religious duties, and want protection for that as well - and the way I read the compromise, it would also include protection for these individuals.
This is where the compromise becomes most pointed. Justices of the Peace work for the state, not the church, yet some have refused to issue licenses to same-sex couples because they have religious objections. In the debate, Professor Robin Wilson discussed the dilemma when a same-sex couple faces a civil servant who refuses to perform the civil ceremony prescribed by the state. There are normally other JPs available, and as with some pharmacists who refuse to perform their job of dispensing contraceptives for religious reasons, as long as the customers are served by someone, all needs can be met - though participants on both sides will have been forced to face, for a bit, the other side's arguments and sensitivities.
But it's important to remember that this accommodation is not a constitutional matter. The constitution does not require states to go this far in accommodating individual religious beliefs. That was established in a 1990 Supreme Court decision, Employment Division v. Smith, which upheld a state law that criminalized drug use, and a prosecution of Native Americans who ingested peyote in a religious practice. If the constitution required a general religious exemption from laws that are generally applicable to everyone, the court reasoned, then each religious believer could become a law unto himself, with a personal veto over any legal obligations he determined were offensive.
The opinion was written by Justice Antonin Scalia, an energetic proponent of religious freedom as a constitutional right, but also a man who's savvy to how people can abuse the courts.
If states have to accommodate even individual religious beliefs against gay marriage, we will need to be wary of the same sort of abuse Scalia was concerned with in Smith. But that is no reason not to try.
13 Comments for “Conscientious objections”
posted by John Howard on
I’m glad David Blankenhorn stated that a flaw of their compromise is that it implies that the only reasons to object to same-sex marriage are religious (why didn’t he realize that before proposing it?). He also probably knows that it isn’t possible, as of course everyone would have to recognize civil law and religious exemptions are unconstitutional. So maybe he was willing to put forth an unworkable compromise just to get the ball rolling and people to start talking about possible compromises and resolutions.
There is irrefutable proof that it is unworkable and should be put aside: Imagine if a man was in a Civil Union or same-sex marriage, and then joined a traditional marriage-believing denomination or just had a “religious conversion” of some sort; that couldn’t allow him to suddenly “not recognize” his obligations to his legally unioned partner anymore. And if a pastor in his new church knowingly officiated a new marriage to a woman, the pastor would be violating state laws about knowingly officiating a marriage that would be invalid by the laws of the state. So the legal fact of every same-sex union would have to be recognized by both the church as a whole and also individual people with conflicting beliefs. “Not recognizing” them is not possible.
OK, good first attempt. The second attempt, the “gentlemen’s agreement” not to challenge DOMA, was also a noble effort at achieving the equal protections that most americans feel are warranted, and correctly identifies the reason it’s proving difficult to achieve them, which is the very reasonable fear that they would be “stepping stones” to marriage and be “marriage in all but name”, and that’s not what people want, they want to preserve marriage and give equal protections with CU’s. But all they could come up with to assure the public that these wouldn’t be “stepping stones” is a “gentleman’s agreement” to stop with CU’s, which not only isn’t at all re-assuring, but even if GLAD and HRC kept their word, a judge would make them marriage just like in California and Massachusetts.
What is needed to reassure the public that CU’s will stay CU’s is a principled distinction based on constitutionally supportable reasons that identifies a right that people should only have with someone of the other sex, and which is essential for marriage to be a marriage.
posted by Mack on
This doesn’t seem reasonable at all; it seems like the institutional whitewashing of bigotry as religious freedom. According to Catholic dogma, the only actual marriage is a Catholic one. And yet there is no widespread demand that Catholic justices of the peace be permitted to refrain from conducting civil marriages of Jews – which, according to Catholic dogma, is no less forbidden than the marriage of gays.
In short, this religious exception is fine – for religions. In government, it is pernicious, discriminatory, and wrong. If a government official, paid by the state to deal with the citizens of the state cannot reconcile with his conscience – then a resignation is in order.
posted by BobN on
“In short, this religious exception is fine – for religions.”
It’s not even fine for religions under the existing religious-freedom compromise this country operates under. If Joe works for the Minneapolis archdiocese and marries Sally in a SATANIST ceremony, not only is his employment protected but the Church has to offer Sally the Witch spousal insurance coverage.
Before we embark on this new “compromise”, could someone explain exactly how we’re worse than freakin’ SATANISTS in the eyes of self-described “Christians”?
(is anybody else having trouble posting more than once per session when using FireFox? Danged annoying.)
posted by Gus on
you said, Justices of the Peace work for the state, not the church, yet some have refused to issue licenses to same-sex couples because they have religious objections.
In Ohio, the priest, rabbi, minister has to have a license from the state to proform a marriage. So the clerics bring up that they would HAVE to marry gays. Not true, and that gives the Justices of Peace cover.
posted by Jorge on
I agree we should limit exemptions to religious organizations only. Individuals who object to same sex relations should be perfectly within their rights to exercise their religious objections–by resigning from their jobs, yes.
We have Muslim women who refuse to get drivers licenses (because they can’t take their headscarves off), Orthodox Jews who refuse to use elevators, and Amish who refuse to do just about everything. Personally I don’t see anything wrong with following mere man’s law, but this country has long respected people who cannot–that doesn’t mean people get special treatment.
posted by Pat on
In New Jersey, public officials who perform marriages must also perform civil unions. If they object to performing civil unions, they can no longer perform marriages as well. My partner and I recently got a civil union. We first went to our city hall, and found that our mayor, who used to perform marriage ceremonies, no longer does. We later found out that he objected to performing civil unions. Our understanding was that it wasn’t so much of a personal objection, but because the bishop apparently told Catholic public officials in the diocese that they shouldn’t perform civil unions. We eventually found a county clerk in a neighboring county who officiated the ceremony. Oh, the mayor is a Democrat, and the county clerk is a Republican. I don’t know if the mayor should be able to exercise his religious objections and remain in his job. But I will exercise my rights and call him a gutless coward for listening to a bishop who should do something constructive and mind his business. And, of course, I will exercise my right and push another lever if this individual decides to run for office again.
posted by Jorge on
I don’t understand this business about mayors performing marriages in the first place but whatever.
posted by Essem on
Mack is wrong in saying that “According to Catholic dogma, the only actual marriage is a Catholic one.” Two Jews marry, two Buddhists marry, two Protestants marry: a real actual marriage in Catholic eyes, completely legitimate.
Catholic marriage law is complex, as you might expect for a large and ancient tradition, and makes a distinction between sacramental marriage (between a baptized man and woman) and “natural” marriage, but both are grounded in the same God-given natural law and both are considered “real and actual”.
posted by David Link on
Jorge, as a philosophical matter, I’m in your camp of drawing the religious exemption line at organizations. In fact, I made a very strong argument to this effect about a decade ago in our California Supreme Court, in a case where a religious landlady said she should be exempted from our state’s fair housing law which prohibits discrimination based on marital status. She refused to rent to an unmarried couple, and argued her religious convictions made it a sin to “facilitate” unmarried cohabitation.
One branch of her church (Presbyterian) agreed with this “facilitation of sin is sin” argument, while another branch disagreed. My argument was that courts are not in a position to resolve such intramural theological disputes, and that, based on Justice Scalia’s reasoning in Smith, that the court should simply reject the individual claim and uphold the generally applicable law.
The court was more generous in its definition of “exercise of religion” than I would have been, and I have kept a keen eye out for the sort of abuse of the individual religious veto that Justice Scalia was concerned about. However, the threat has remained more theoretical than actual. That real world experience leads me to think that Jon and David’s compromise could actually be hammered out and work. Allowing a handful of religious people to avoid their job duties — as long as someone else is available, which is nearly all the time — seems a small enough price to pay in order to get same-sex couples included in federal law.
posted by BobN on
“But ?conscience? is not an organizational attribute, it is a personal one”
And what happens when an organization is personally owned by an individual who has a personal objection to gay people?
posted by David Link on
The conscience clause we’re talking about here is for religious organizations — and possibly individuals — not private companies. Even the Catholic church wouldn’t claim it was “owned” by the pope.
Private companies operating in the open marketplace do have to abide by the laws of the place where they are located, and if those laws include prohibitions on discrimination (based on race, gender or sexual orientation), then they do have to abide by them, as they have to abide by any laws of general application such as tax laws. The owner of such a business — say Doug Manchester in San Diego — has every right to spend his money as he wishes to fund propositions to ban gay marriage. With that right, though, comes the obligation to be answerable in the marketplace if, say, people choose to boycott his hotel, which they are continuing to do.
He can claim that his right to fund propositions is rooted in his religious exercise or his free speech rights, or any other rights he’s guaranteed in this nation — and good for him. But good for us in holding him responsible for promoting a position that harms gay people.
But none of that has anything to do with the Manchester Hotel being a church or church-affiliated organization.
posted by Pat on
I don’t understand this business about mayors performing marriages in the first place but whatever.
Jorge, when I go to city or county offices, and ask about a justice of the peace performing the service, I got funny looks.
posted by BobN on
“– and possibly individuals –”
OK, I’ve now wasted the time and read the transcript. Nothing particularly exciting. Lots of questions about what “robust religious exemptions” are, followed by lots of examples of about other things.