Gay Marriage and Threats to Religious Freedom: Hiding the Ball

As someone who likes to know what people I disagree with are thinking, I frequently read conservative websites such as the National Review.  It does not take me long to realize how much I disagree with their contributors.

One of the frequent contributors to the website, especially on gay marriage, is Maggie Gallagher President of the National Organization on Marriage (“NOM“) (which ought to be called the National Organization on Heterosexual Marriage).

On April 8, Ms. Gallagher wrote:

Same-sex marriage is quite different from bans on interracial marriage in one powerful respect: It asks religious Americans to surrender a core belief — not only Leviticus (disapproval of gay sexual acts), but Genesis (the idea that God himself made man as male and female and commanded men and women to come together in a special way to image the fruitfulness of God).

Really, how?  No government actor or agency has asked a priest or rabbi to marry a gay couple.  No government actor has asked a religion to recognize as married two gay people.  No government actor has asked a religion to accept as a member(s) a gay person or a gay couple.  No government actor has asked a religion to condone gay marriage.  Nor could it.

As much as I support gay marriage, even I do not advocate government actions such as these.  I completely support the right of people, in their private lives, and religions to not associate with those they do not want.  Specifically, I support those who believe that gay marriage is a sin not to recognize gays couples as married.  But no one is asking that they do.  Unless Ms. Gallagher’s religion is somehow part of the state, I do not see how state recognition of gay marriage in any way infringes on her or anyone else’s First Amendment rights.

While the First Amendment protects someone’s right to believe as they want,  it does not prohibit the government from enacting laws that might violate that person’s religious beliefs and convictions (so long as the law is not specifically aimed at those beliefs because they are religious beliefs).  Therefore, if you wanted to have a party at your home or your temple and wanted only to invite married people, you would be perfectly within your rights to exclude married gays or gays generally.

But I am not asking that religions recognize gay marriage or for private citizens, acting as private citizens, to accept them as married (though I would hope they did).  Rather, what I am advocating is that the government recognizes and permits gay marriage.  This is a distinction that the National Review and others who argue that allowing gay marriage somehow infringe on religious believers rights fail to recognize.

In fact, based on the logic employed by Ms. Gallagher, the current bans on gay marriage is infringing on the rights of those us whose religious or political views recognize and support the rights of gays to marry.  For some, that is a core belief of their religion or political party.  There are many churches and temples in the Christian and Jewish faiths (and many other faiths), which do perform and support gay marriages (and many other religions that do as well). Yet, until the law is changed, those congregant members must sacrifice their views for Ms. Gallagher’s.  Therefore, based on Ms. Gallagher’s logic, we cannot allow state sanctioned marriage that does not include gay marriage.

But we cannot have a society whose laws are dictated by the idiosyncratic views of religious observers.  It would be completely unworkable.  As the radical liberal Justice Scalia observed in his opinion for the Supreme Court in Employment Division v. Smith:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.

As the Supreme Court observed in another marriage case, this time wrt polygamy, in US v. Reynolds

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed.  Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

In Smith, Smith and others sought to exempt themselves from Oregon’s ban on the use of peyote, because his religion.  In Reynolds, Mormons argued that the government’s ban on polygamy violated their free exercise of religion.  In both cases, the Supreme Court held that the free exercise rights protected by the First Amendment do not permit a person to exempt him or herself from the application of facially neutral laws.

Furthermore, many laws allow things that completely contradict religious teachings and laws.  All 50 states allow divorce (something that is not recognized by the Catholic church), furthermore, all 50 states permit a woman to end a marriage without the permission of her husband,(something the Jewish faith does not allow) and all 50 states permit unmarried sex and birth control (which many religions forbid).  Yet, no one thinks that just because the government allows these things, somehow it is forcing religious believer to give up their core religious beliefs.

Where gay marriage advocates really go off the rails is when they conflate state recognition of gay marriage with state enforcement of antidiscrimination laws against those who object based on religious grounds.  State antidiscrimination laws generally hold that if you hold yourself open to the public to provide services you cannot discriminate based on certain criteria. This means that if you provide a service to the public, such running a hospital or an adoption agency, you must generally abide by antidiscrimination laws like all other similar businesses [I will leave for another day the discussion about whether these laws should apply to religiously affiliated organizations such as religious hospitals or adoption agencies.  That is issue is a much more complicated discussion.  My general feeling is that if we would not permit those affiliated organizations from discriminating based on race or gender, we should not allow it for gays.]  For example, under California’s Unruh Civil Rights Act,

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, or medical condition are entitled to the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.

In California, if sell pizza, you are not permitted to refuse to serve blacks or women.

But recently, Ms. Gallagher’s group, NOM, released an ad (which has mocked brilliantly by Stephen Colbert) about the “coming storm” if we allow gay marriage.  They cite a number of threats to religious freedom that they imply result from gay marriage.  I will highlight two of the more ridiculous claims.

First, they cite a California doctor that was found liable under the state’s antidiscrimination law for refusing to artificially inseminate a lesbian.  Because of the Unruh Act, if you operate a medical practice in California that is open to the public, you are not permitted to discriminate based on sexual orientation.  A lesbian had come to the fertility doctor to get artificially inseminated, but the doctor refused based on her religious beliefs.  The patient sued and the doctor argued that her religious views exempted her from the California law.

In Smith, Justice Scalia had written:

Our conclusion that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.

The California Supreme Court said there was no violation of the doctor’s religious freedoms, because like in Smith, California’s antidiscrimination law was facially neutral.  It applied to equally to believers and nonbelievers.  Therefore, the doctor was not allowed to exempt herself from the law’s proscriptions simply because she held certain religious views.  But what NOM fails to tell viewers is that this ruling has nothing to do with gay marriage.  The doctor would still have acted illegally regardless of whether California allowed gay marriage.  California had its antidiscrimination law long before it had allowed gay marriage.  And the law’s proscriptions live on even though gay marriage is banned in California.

Second, the ad cites the Orange Grove Meeting Association of NJ, a Methodist organization, which refused to allow a gay couple to use its property for a civil union ceremony.  A court found that it had violated a NJ public accommodation law, which prohibited public accommodations from discriminating against gays.  If that were all of the facts, I would agree there was something wrong here.  A private group has every right to refuse to open its property to those who they do not agree with.

But of course that was not all of the facts.  What NOM failed to tell its viewers is that the group had applied for and received a $500,000 property tax exemption every year from the state of New Jersey, because they indicated the property was “open to the public.” Aside from this non-disclosure, NOM also fails to tell its viewers that this group would still be in violation of the law even if gays were not allowed to get married.  The two have nothing to do with each other (just like in California).

If anti-gay individuals or groups do not like antidiscrimination laws because they burden their members religious views, then lets debate that.  But do not lump these objections in with objections to gay marriage.  These antidiscrimination laws will continue regardless of gay marriage.

My response to those groups who seek religious exemptions from antidiscrimination laws that protect gays is:  how are these protections any different from the protections we give to blacks or women?  If you open yourself up to the public to operate a business or provide services, you are not permitted to discriminate based on skin color.  It makes no difference that your reason for discriminating is religious doctrine.  Any other system would simply be unworkable because it would allow people to pick and choose which laws they choose to obey based on their religious views.

But why stop at religious views.  The First Amendment protects political views as well.  Should I be allowed withhold my taxes simply because President Obama is enforcing laws I disagree with?  Because I disagreed with Iraq war, should I have been able to withhold my federal income taxes?  Our government could not function under such a system of religious or political exemptions.

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