Professor Dale Carpenter (who I am happy to be the first to note has just joined our blog with Joan de Fresno) has an excellent piece at another site about religious liberty protections for those opposed to same-sex marriage. He expands on the Jon Rauch/David Blankenhorn compromise, and asks some very pointed questions which, I think, boil down to a single one: How should the law deal with individual religious believers?
The First Amendment protects the "free exercise" of religion, which sounds pretty broad. But as Justice Antonin Scalia has pointed out, if this protection were too broad, it would allow any religious believer to opt out of obeying the law. If any person's action based on a religious belief is the protected exercise of religion, then few laws would be exempt from a potential personal veto. Scalia took this threat seriously in his 1990 majority opinion in Employment Division v. Smith, where the court upheld an Oregon law prohibiting drug use against a challenge from religious believers who wanted to use peyote in a sacramental exercise.
It is usually easy to determine what counts as a religious exercise in a church, and even for a religious entity such as a church-run hospital. But the law protects "sincerely held" religious beliefs, and any individual can sincerely believe pretty much anything, up to an including that
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
This is an exact quote from the trial judge who originally upheld Virginia's law prohibiting blacks and whites from marrying one another, the law the Supreme Court overturned in Loving v. Virginia.
An awful lot of people believe awfully sincerely that homosexuals are sinners, a belief that is in direct conflict with laws treating lesbians and gay men equally in civil society. I have been concerned about the scope of a personal religious veto, not just with respect to homosexuals but in general, since the early 1990s when I worked on a California Supreme Court follow-up case to Employment Division v. Smith.
Our court didn't adopt a theory I'd proposed on religious freedom, but since 1996, I confess that individual cases of abuse of free exercise have not been clogging the courts as I'd feared. That's why Douglas Laycock's eloquent letter to the Connecticut Legislature resonates with me. He is a well-known scholar of the contours of religious liberty, and notes his own support of same-sex marriage. He argues that religious opponents need some breathing room in our democracy on this issue.
This will come at some cost to same-sex couples who might have to suffer through some uncomfortable face-to-face religious opposition in public situations. That is no small thing for those of us who have encountered it. But those couples will also know that this individual's personal beliefs, whether respectfully and civilly articulated or not, won't prevent the couple from obtaining whatever the law permits and the market provides.
After many years of pondering the options, I think this is a reasonable trade-off. The law, in all its majesty, cannot prevent people from experiencing their deep feelings, and it is at its weakest when it tries. Laycock states what has become painfully obvious:
Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive.
Laycock is convinced that there won't be a lot of objectors, and while I'm a bit more skeptical, I think it's worth a shot. Religious anxiety really is the only argument left against homosexuality, and even that is fading. If we can kill it off with kindness, I'm for it.
5 Comments for “Killing Them Softly”
posted by BobN on
These “compromises” aren’t really about individual religious liberty, they’re about enshrining institutional discrimination. One of the reasons the Vatican and the Catholic Church hierarchy so desperately want these laws is because they know they’ve already lost the ground war. The people who run the Church’s schools, hospitals, and social-service agencies are among the most liberal Catholics. Case in point: Catholic Charities of Boston. Large majorities of the board, the staff, the financial supporters supported providing adoption services to gay people and gay couples. Only under orders from Rome did this become an issue.
And, if “religious liberty” really is such a big issue, why is the only “infringement” on them related to us? Doesn’t the Church want to be able to discriminate against bigamists and adulterers?
posted by revchicoucc on
The Catholic Church is not the only church in this country. I am a minister in the United Church of Christ. My congregation supports marriage equality. My denomination, although not every church or clergy person, supports marriage equality. I can accept a religious exemption in statutes authorizing same-gender marriage if it moves us more quickly into a fully equal future. Right now, because same-gender marriage is illegal in my state, I cannot practice the teachings of my church. I feel no need to compell clergy or religious bodies to solemnize same-sex marriages. I do not think opponents of same-gender marriage should be able to compell me to be unable to solemnize such a union.
Even under current marriage statutes, no authorized officiant, clergy or otherwise, is compelled to solemnize every marriage they are asked to do. I am completely free under both the law and my church’s practices, to refuse to marry any particular couple.
My real preference would be to separate the civil marriage ritual from the religious blessing ritual. Under this scenario, everyone goes to a public official to be married under the law, fully, legally married. Those who want a religious blessing then have a separate ritual to bless their marriage. At this point in the history of the United States, marriage is more a civil legal contract than a religious one. It’s time to recognize that and separate the two rites. I see no reason why clergy should continue to be agents of the state in this matter. It is the only time we act on the state’s behalf.
posted by Bobby on
What’s wrong with exemptions? There are all kinds of laws and all kinds of exemptions. Google “homestead exemption” and you’ll see a florida law that protects certain homes from an increase in taxes.
“My real preference would be to separate the civil marriage ritual from the religious blessing ritual. ”
—Some people like to kill two birds with one stone. What’s wrong with that?
There are gay affirming churches, in the future gays will be able to get married there or get married in a civil court.
This is no different than allowing Catholic Hospitals to prohibit the practice of abortion in their grounds.
Secularists need to keep their ugly hands far away from religion, and hopefully the religionists will grant us the same favor.
posted by TomJ on
Hey, I know secularists with beautiful hands. And religionists with ugly hands. If by “ugly” you mean intrusive, I would respectfully submit that religionists historically have the uglier hands. Sorry, nit picking here a bit. That said, this atheist is all for exemptions for religion when it comes to marriage. One nice thing about atheism, one doesn’t have to know or care what goes on inside a church, as long is it doesn’t reach into my home or family (unless invited).
posted by hazemyth on
“But those couples will also know that this individual?s personal beliefs, whether respectfully and civilly articulated or not, won?t prevent the couple from obtaining whatever the law permits and the market provides.”
Short of public accomodation safeguards, I really don’t see how they can know this. Maybe circumstances seem to trend that way now but there’s no guarantee that they will continue to do so. Refusal of service by individual religious practitioners — particularly if it includes housing, employment and medical provision — seems substantially dangerous to me. It wasn’t so long ago that we had visible demonstration of this (or rather the invisible demonstration that was the closet), as David Link’s posts remind us.
Many advocates of religious exemptions also downplay some of the harm as ‘merely symbolic’. This minimizes the issue too much. We aren’t just bodies with material needs, we are social creatures. Symbolic harms inhibit the way we socialize. It’s not just about being able to live as a homosexual, it’s about being able to live with dignity. It’s that very dignity, such as the public solemnization that is marriage, that offends people.
I just don’t see how, as a civil society, we can skip past normative questions. The legitimacy of homosexuality, like other questions of equality, can’t be treated ambivalently in any way that’s sustainable.