by J.L. Wall
Rod Dreher has a long, interesting post up on the fallout from Prop. 8. Rod has said that if he lived in California, he’d have voted for it; I’d have voted against it, so we’re coming from opposite sides on this and I don’t by any means agree with all (most?) of what he says (and think the title is exceptionally hyperbolic), but, like most of what he writes, it’s worth reading nonetheless.
The argument that I’ve seen more and more often lately–and the argument that I don’t quite understand–is that legalization of gay marriage is a threat to religious liberty. He writes:
“Frankly, I think the anti-SSM forces should work to make Americans aware of the threat to religious liberty from constitutionalizing SSM, and should start figuring out how to pass a federal constitutional amendment drawing a bright, clear zone of protection around religious institutions, granting them immunity from civil rights laws governing homosexuality. In other words, to retreat to a position that is defensible in the long term.”
John
I’ll take the bait. I think what Rod means to say is this: Wether or not marriage is a solely secular distinction now, is not the issue. The idea of marriage originated as a strictly religious institution. Marriage was a religous ceremony and only a religous ceremony. So, when the government we have today was adopted, and they wanted to separate the church’s influence over the state, they secularized marriage as much as they could at the time (requiring a license that didn’t require a church ceremony). But marriage remained a deeply religious institution and is, to this day, a religious distinction, if the word is used in government legislation or not.
Rod is saying that, by legislating same-sex marriage, you are forcing churches (who must obey the laws of our government, right?) to adopt that definition as well. We may say, today, that churches are not forced to marry homosexual couples, but it’s not a far-fetched idea that lawsuits would begin to happen when same-sex couples begin to get turned down by churches. The argument would be: Same-sex marriage is the law, and these churches are refusing to follow the law, they are discriminating on the basis of sexual-orientation (sound familiar?).
As sure as seperation of church and state is designed to protect government from church influence, it is also designed so that the church can practice it’s religous ceremonies absent of government influence (within reason of course). While I agree with Rod that part of this issue is one of religous freedom, I disagree with his solution. I don’t think the government should use the word “marriage” anymore. Marriage should again become a purely religous institution and the government should deal with only civil unions. Couples, either hetero or same-sex, will have to get a civil union and wether they get married or not will be up to them but the government shouldn’t have any influence on it either way.
Hey JL -
I wrote a post a while back about the religious liberty angle: http://johnschwenkler.wordpress.com/2008/06/20/lets-meet-halfway/. I do think it’s a non-trivial concern, but I’m also pretty confident that it’s not enough on its own to ground opposition to SSM. I have a Culture11 essay on Prop. 8 coming out soon.
Also: an old grad school friend of mine actually wrote a report on the topic: http://www.heritage.org/Research/Family/bg2201.cfm#_ftnref97.
The tangible threat to religious liberty seems to be a second-order one, related mainly to the litigiousness of our culture. The fear is that religious institutions will get stuck with all sorts of employment- or service-related lawsuits. For example, Catholic adoption agencies would either have to work with same-sex couples or shut down, as in Massachusetts. (John’s post above covers this too.)
I’d love to think that these troubles can be avoided by thoughtful legislation and careful decisions from the courts…
And, as I said, I do think these are second-order problems, and not in themselves a reason to oppose gay marriage. They just need to be considered in whatever democratic compromise we try to find.
Whether or not you believe that interracial marriage is analogous to same-sex marriage, wouldn’t the experience of churches and religious people in the wake of Loving v. Virginia be a place to start the inquiry, if we are wondering about the civic and legal consequences? Some would say that religious freedom suffered in the wake of laws and decisions limiting racial discrimination (Bob Jones University’s loss of tax exempt status, for instance), but have churches been sued successfully for refusing to marry interracial couples?
I’m sure there’s some kind of analogy there, but one important difference is in the size of the religious groups that won’t officially recognize same-sex marriages now and the size of the groups that wouldn’t recognize interracial marriage back then, as well as the difference between their national/regional influences. Bob Jones U.-style fundamentalism isn’t negligible, but it’s not the Catholic Church, either.
As for the sort of litigation that we might see in the future, check out this NPR story.
I think Rod (for whom the sky is always falling in one way or another) is conflating loss of nonprofit tax status with loss of religious liberty, in the manner of Bob Jones University. The short version of what this means is that the religious organization would have to pay taxes on its activities. That’s not the same as losing the liberty to practice religion. To that argument, I say wah, wah, wah.
Really, if anyone can point to an instance of a religious organization being forced to compromise its core religious beliefs because of anti-discrimination law, I’d love to see it. The examples I’ve seen are all of ancillary business or charitable activities, not core religious practices (such as communion, baptisms, extreme unction, etc.).
I’m glad it passed, SSM as it’s being pursued now will be devastating to religious liberty, parental rights, and family law…
I guess the second-orderness of it explains why I hadn’t really heard much about this issue until the CA court case and Prop. 8. But that NPR story seems to imply the court cases are inevitable regardless of the status of gay marriage (note the case in Mississippi), so I’d read it as less caused by gay marriage than by what William termed “the litiginousness of our culture.”
William, I do think you have a point about needed to take this into account when forming whatever compromise/solution/term-of-choice we eventually come to.
The religious liberty of parents to send their children to school with the confidence that their religious and moral beliefs won’t be undermined is also threatened. If kids are taught anybody who doesn’t like SSM is a bigot, even if they are taught so obliquely, all minimally traditionalist families are threatened.
Sure, this happens now in the cases of evolutionary theory or sex ed, but adding yet another issue to education won’t soothe cultural conflict.
There’s also the issue of whether a religious employer not affiliated with a church should be forced to recognize yet another union he believes to be sinful in insurance benefits and so forht.
The ever-irenic churches tend to defend only the freedom of their their institutions, and not the freedom of secular businesses run by their members.
“If kids are taught anybody who doesn’t like SSM is a bigot, even if they are taught so obliquely, all minimally traditionalist families are threatened.”
Threatened with what? Dissolution? Tangible harm? And by whom? This is how the passive voice can omit the most important part of an argument.
The problem with Rod’s argument is that it’s a slippery slope argument that involves two very different slopes – allowing SSM is not the same thing as infringing upon religious liberty, as I think even Rod would agree. Instead, he is more making the argument that it will open the door to infringements of religious liberties – but there’s no way of knowing one way or another whether that will actually happen.
Regardless, even if there is a legitimate “slippery slope” argument here, this argument misunderstands the nature of religious liberty, which is a freedom “of” not a freedom “from”:
“The religious liberty of parents to send their children to school with the confidence that their religious and moral beliefs won’t be undermined is also threatened.”
Parents have an absolute right to home-school or send their children to private school. But public schools in a heterogenous culture cannot cater to the values of every single parent’s religious beliefs. Unfortunately, outside the realm of mathematics, it is virtually impossible to speak about an educational topic without implicating some religious, moral, or political belief. If public education is to exist (which is another issue altogether), it will thus inherently result in the contradiction of some parents’ moral teachings. This does not, however, amount to an infringement of religious liberty – you are still free to practice whatever religion you wish, to contradict your child’s teachers, or to send your child to private school or to otherwise receive a religious education.
Keep in mind – not all parents have the same religious beliefs as you. If you believe that evolution and the teaching of sex ed are an infringement of your religious liberty, then teaching those topics the way you may wish would be at least equally an infringement on those other parents’ religious liberty.
Now, if you would like to discuss the rights of parents to pull their children out of class for subjects that they consider immoral – well, that’s a religious liberty issue.
It’s hard not to think Dreher is being obscuratanist about the issue. I’ve found out much more about why he (might) think that religious freedom is at issue from this thread than from anything Dreher wrote.
If he thinks there is a credible threat to religious freedom, he needs to be clear about what it is and why it specifically relates to same sex marriage so that it’s not just scare tactics.
[...] Prop. 8 Aftermath: Religious Liberty — I announce that I don’t really know what Rod Dreher’s talking about. Others enlighten me in the comments. [...]