IGF CultureWatch

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.

The controversy is this. Miss California finished second in the Miss USA contest after she gave an equivocal, factually incorrect, and inarticulate answer to a question. This alone does not distinguish her from the field. But the particular question was whether she supports SSM, which gets everyone's culture-war adrenalin flowing. She answered that it's "great" to live in a country where people are "free to choose same-sex marriage" or "the opposite marriage" - which is descriptively false but sounded as if she supported SSM as a policy matter. Then she added that in "my country" or in "my family" marriage "is between a man and a woman" - "no offense intended" to anyone.

I, for one, took no offense because I have no idea what she meant. The most likely interpretation is that she was playing to both sides, supporting same-sex marriage as a policy matter, but personally opposing it, the way one might believe a protestor has the right to burn a flag but think that flag-burning is wrong. I think just about every SSM supporter can live with that. And if it had been left there the matter might have been entirely forgotten, as the answers in all these beauty-contestant pageants are forgotten. As the second-place finisher, Miss California herself would have been forgotten, as indeed are the first-place finishers.

But the judge who asked the question, an openly gay celebrity-gossip maven, then defensively posted a video denying what nobody had yet charged, that Miss California had lost because she opposed gay marriage, which she hadn't opposed. Even this might have been forgotten if he hadn't added insult to non-injury by screeching that she had really lost because she's "a stupid b-h" who couldn't give a coherent answer to a predictable question.

By the next morning, the disappointed Miss California with no definable position on gay marriage had transmogrified into a free-speech and religious-freedom martyr who lost because she bravely stood up for her values, in "a test from God," against the gay mafia and the fork-tongued enforcers of PC orthodoxy. Never mind that the gay questioner was one of twelve judges. Never mind that the director of the Miss California organization said that he did not think she had lost because of her answer to the gay-marriage question. Never mind that she had been third going into the question round - which comes on the heels of the swimsuit round and the evening-gown round and the walk-around-the-room-and-wink round.

The whole manufactured controversy was a microcosm of the talk-show argument against gay marriage: dubious causation, exaggerated victimhood, endless repetition, and selected deployment of the most outrageous statements from the most overbearing gay advocates as if they somehow speak for gay families.

By the next afternoon, Maggie Gallagher at NRO annointed Miss California the new exemplar of traditional marriage for standing up against "lies and hatred" and all the demon bats of Hollywood.

Really? If there's a public face for Maggie's anti-SSM campaign, isn't it Levi Johnston, who appeared on Larry King Live last night, and Bristol Palin, whose traditional-family-values upbringing might be undermined? Aren't they the kind of folks who might become dangerously confused if gays wed? Adam and Steve get hitched and, next thing you know, Levi and Bristol will be off forgetting that sex, marriage, and babies go together.

This quote within Jon Rauch's post jumped out of me: "Another 37 percent said they thought the party should avoid the issue [of gay marriage]."

And there you have it: a capsule summary of the problem very small minorities have in a democracy. The majority already has all the relationship rights they want or need. It's easy for them to simply "avoid" the issue of same-sex marriage.

We don't have that luxury, but only because we're the only ones directly affected by the lack of equal rights. We don't get a day off from inequality, and if we were to avoid the issue, it would mean giving up on ourselves.

Does anyone really think, after we've come this far, that we're going to call it quits? Well over a third of these Republicans may want the whole issue to just go away, but that's because the status quo works for them. It doesn't work for us, and it is a supreme goal of this movement to make sure that heterosexuals truly understand that fundamental fact.

Frank Rich had some interesting thoughts (yes, I actually said that) in his Sunday New York Times column. He remarks on the scant reaction on the right to the Iowa and Vermont marriage victories, aside from the silly anti-gay YouTube missive from Maggie Gallagher's "National Organization for Marriage." Writes columnist Rich:

Even the anti-Obama "tea parties" flogged by Fox News last week had wider genuine grass-roots support than this so-called national organization. ...[M]ost straight citizens merely shrugged as gay families celebrated in Iowa and Vermont. There was no mass backlash. At ABC and CBS, the Vermont headlines didn't even make the evening news.

Let's leave aside Rich's partisan belittling of Fox News - the tea parties are a genuine and important demonstration of opposition by a large number of Americans, including yours truly, to Obama's trillions of spending for government expansion. (Read Steve Chapman at reason.com: "The scale of the federal response to the crises has come as a frightening surprise to many Americans, who suspect the cure will be worse, and less transitory, than the disease." And I suspect they're right.)

If we were not so intent on adopting an air of cultural superiority toward them, we might see that libertarian conservatives who distrust intrusive government and want it out of our wallets and our lives are exactly those with whom we should be engaging in dialogue.

Still, Rich is right that Americans seem to have turned a corner on the gay marriage issue. Alas, too late for California, thanks to our own activists' organizational surrender on state anti-gay initiatives in November 2008, in order to better support Obama and the Democratic Party (and not offend Obama's anti-gay minority constituency). But still a good harbinger for the future.

Rich is also right that the GOP still has a long way to go, with those he labels as the party's chief contenders in 2012, Romney, Palin and Gingrich, "now all more vehement anti-same-sex-marriage activists than Rick Warren." That's why I believe it's all the more important to be supportive of efforts by Log Cabin and the new GOProud to work toward change from within the Republican flanks. The pro-marriage equality speech at Log Cabin's convention last week by Steve Schmidt, the Republican political consultant who managed John McCain's campaign, was a good sign (see Jon Rauch's item, below).

But much more needs to be done. And liberal Democrats belittling these efforts isn't helpful.

You've probably heard that Steve Schmidt, the Republican political consultant who managed John McCain's campaign, told Log Cabin Republicans Friday he's for gay marriage, and that the party as a whole needs to stop making opposition to SSM a litmus test. But that bald statement of the point doesn't convey the rare beauty of Schmidt's statement of Republican, and republican, ideals. Take a few minutes to read the whole speech.

Marc Ambinder doesn't think Schmidt will get anywhere. But here's another sign of a change in the climate: National Journal's poll of "insiders" (political professionals) finds that 59 percent of Dems say the party should support gay marriage. Meanwhile,

Exactly half of the 104 Republican Insiders who were surveyed said that their party should oppose gay marriage. Another 37 percent said they thought the party should avoid the issue, and 8 percent said the GOP should actually support gay marriage. The remainder also gave scattered volunteered responses like leave it up to the states, accept it, or that the party shouldn't care it. That's a pretty close divide between the Republican Insiders who say their party should oppose gay marriage compared to those who say avoid or support it.

In other words, support for SSM is no longer a political third rail for Dems...and Republicans are growing uncomfortable with their opposition.

There's a telling section in the Iowa Supreme Court's opinion in Varnum v. Brien, that hasn't gotten as much attention as it should. The section is only about four pages long, but it says everything about the current state of the debate over gay marriage - and, in general, about gays in civil society.

After addressing the five key arguments against same-sex marriage, and explaining why they are not sufficient to justify state discrimination against same-sex couples, the court then reaches out to answer a sixth argument that the government had not made: religious opposition:

The belief that the "sanctity of marriage" would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained- even fundamental-religious belief.

That is both exactly right and extremely important. Courts do not normally need to look at arguments no one has explicitly made, but this is an argument that does, indeed, better identify the source of the opposition to gay marriage. It explains why so many of us who argue about equal protection for gays wind up against our wills in discussions about theology.

Historically, homosexuality has faced three major barriers to acceptance: (1) it was a crime; (2) it was a sickness; and (3) it was a sin. In 1961, Illinois became the first state to decriminalize sodomy (both straight and gay), a movement that ended in 2003 with the U.S. Supreme Court's decision in Lawrence v. Texas, overturning the last remaining sodomy laws in the U.S. And in 1973, the American Psychiatric Association removed homosexuality from its list of mental disorders.

That means the animating argument against homosexuality - and specifically gay marriage - remains a religious one: it is a sin.

The Iowa court acknowledged the importance of this to religious believers, but pointed out that this is not the only religious view. As evidenced by friend-of-the-court briefs in the case, many religions also "have strong religious views that yield the opposite conclusion."

No secular court can - or should - try to intervene in theological matters, one of the least controversial parts of the first amendment's religious protections. The court concluded the secular arguments are either circular, inconsistent, beside the point, or involve rules (such as procreation) that heterosexuals do not (and would not) impose on themselves. While religious arguments may be profoundly convincing to believers, civil society is made up of too many people with too many varied religious (and irreligious) beliefs for a court to have to take sides.

That makes arguments about homosexuality different from those surrounding abortion. Abortion, as a public policy matter, involves a sin that is also a well-recognized crime: murder. The issue is at what stage a fetus is a person for purposes of applying that secular rule.
But homosexuality - and gay marriage in particular -- no longer involves any secular crime. Nor is having a homosexual orientation any sort of disease that disables anyone from making voluntary, adult decisions that are lawful. Lacking either of those underpinnings, the public debate over homosexuality returns endlessly and exhaustingly to religion.

Whether or not we are a "Christian Nation," we are decidedly not a nation whose courts could conceivably resolve disputes among Christians about what is or is not sinful. Yet that is exactly the dispute that now exists, not only among Christians, but among Jews, Muslims and even religions that are not as focused on sin as Western religions tend to be.

This is a family squabble among those religions -- with some families more exercised about the subject than others. For their part, though, the courts continue to search for other reasons to justify civil discrimination, and increasingly are having a hard time of it.

Maggie Gallagher and I have found something to agree on! In its legislation adopting same-sex marriage, Vermont included some quite substantial opt-out clauses for religious organizations. These are not merely gestural, as David Bankof notes. Like Maggie, I see this as a potential landmark.

Maggie sees significance in the fact that the gay-marriage movement-which she regards as a juggernaut bearing down on her civil rights-"permitted" religious-liberty protections. I'd put it a bit differently: this kind of live-and-let-live arrangement, while imperfect, benefits both sides.

David Blankenhorn and I argue for tying religious-liberty protections to federal recognition of gay couples because it's a way to expand the comfort zone of both sides: gay couples and families get many of the protections they need, religious objectors get legally assured room to dissent. Vermont signals the political viability and real-world relevance of this approach.

It also, by the way, shows that legislatures can do politics better than courts. But we knew that.