I want to recommend a thoughtful book on a very divisive subject. Same-Sex Marriage and Religious Liberty: Emerging Conflicts, is a collection of essays written by legal scholars on both sides of the same-sex marriage debate. And why I appreciate it, more than anything else, is that it is honest. All of the scholars in the book point out that it is dishonest for people on both sides of the debate to state that their position doesn’t trample on the rights of the people on the other side of the debate. Proponent of same sex marriage and Georgetown Law Professor, Chai R. Feldblum writes of this conflict, “My primary argument is that we gain something as a society if we acknowledge that a law requiring that an individual act in a certain way might burden some individuals’ belief liberties. Such an acknowledgment is necessary if we wish to be respectful of the whole person.” Yet, I hear this acknowledgment entirely absent on the side of proponents of same sex marriage in the California debate. Instead, repeatedly, prononents have acted as though their side of the debate is the only side that respects rights, and have falsely claimed that their side of the debate doesn’t demand some sacrifice of deeply held religious beliefs. Many proponents of same sex marriage in California have called the concerns expressed in Pro-Prop 8 media prior to the election false, namely their concerns about same-sex marriage being taught in schools, religious groups being targeted for losing tax-exempt status for refusing to perform same-sex marriage, religious speech being called hate speech, and the like. The legal scholars in this book, by carefully reviewing legal precedent in our own country as well as looking at how these conflicts have been handled in other countries. One scholar, Marc Stern looks at the conflicts that have already arisen, in the realm of housing, employment, places of public accomodation, commercial licensing, government funding, freedom of speech, and religious clubs in public schools and universities. These cases reveal that there is a conflict, and that it should be acknowledged.
So if the conflict is real, what is the answer? How do you ensure respect for those on both sides? Religious liberties were the foundation for this country. So acute was the importance of religous liberty in the founding of this country, that it was enshrined in the very first amendment to the constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”. Some would argue that we should throw away this founding principle of our republic. As a person who is grateful for the religious liberty of this nation, knowing full well that my religion has flourished under those Constitutional conditions, it is discouraging to me that so many people would so willingly gloss over that Constitutional legacy.
Similarly, I feel, based on both my religious belief and my secular belief in individual liberty that people have the right to live in such a way that makes them happy, assuming insofar that their choices do not trample on the rights of others. People are entitled to love whomever they chose. Those choices should be respected in a system that promotes liberty. So in that vein, I do believe that rights of Gay and Lesbian Americans are also worth protecting. My friends and loved ones that are Gay and Lesbian Americans are wonderful people who contribute to society in all sorts of meaningful ways.
If this conflict is unavoidable, what do we do? I should note from the outset, that I believe the proper place for consideration is in the legislative branch of American government. I think that it is vital that the legislative branch be the forum to discuss and ultimately find solutions to these conflicts of interest. Only there are all voices given a chance to be heard, by conducting a full debate and listening to the concerns of people on both sides of the issue. I believe this in part because I believe that in the history of this country, rights for protected classes of people have some textual basis in origin. I have heard people repeatedly, and falsely, in my opinion, argue that the Civil Rights movement for African Americans was born in the courts. In actuality, the Fourteenth Amendment to the Constitution is the textual basis for the Civil Rights movement. Unfortunately, Supreme Court justices for many years didn’t properly consider the 14th amendment and its purposes in terrible decisions like Plessy v. Fergueson. In the 1950s and 60s, Congress again re-emphasized these civil rights with the passage of the Civil Rights Acts. Fortunately, by this time a court that was willing to enforce the 14th amendment to the constitution was also in existence. On that same note, I just also want to mention the oft cited case of Loving v. Virginia, the case which ended race-based restrictions on the right to marry. Once again, the Fourteenth Amendment was the textual basis for this decision, “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” In law, racial discrimination is given a higher level of scrutiny “strict scrunity” which reflects not only the extreme history of discrimination that African Americans faced in this country and also the fact that such discrimination resulted in the creation of the 14th amendment. In the US, since the Civil Rights Acts of the 1950s and 60s, other pieces of legislation have been passed to protect particular individuals, such as the Americans with Disabilities Act. My point is this – it is the legislative body through which these determinations originate.
So, my belief in the legislative process for making these types of determinations being outed, what would my ideal legislative solution look like? First of all, the scholar Robin Fretwell Wilson argues that there has to be some sort of protection for people’s conscience, assuming that reasonable accomodations can be made. I like this notion, very much. This is particularly key when determining whether or not tax exemptions for churches can continue to be maintained if same-sex marriage is legalized. As Wilson points out, the IRS’s reaction to Bob Jones University based on their pattern of racial discrimination in the past is used by proponents of same-sex marriage (who do liken anti-same sex marriage feelings to racial discrimination), then tax-exempt religious institutions do have cause for concern. This in turn tramples on deeply held religious beliefs. Thus, there has to be some sort of legislative crafted exemption for religious institutions based on their deeply held beliefs, so far as reasonable, secular accomodations exist (example: religious social service organizations can continue their policies of considering only heterosexual couples for adoption because secular and governmental adoption agencies allow same-sex couples to adopt).
Secondly, I agree with Douglas Laycock, the editor of the book, that civil unions have to be separated out from the religious notion of marriage. In the book, Charles J. Reid, Jr. gives an excellent legal history into the foundation of marriage. Reid points out that marriage, in its inception was only given meaning in a religious context. Until the mid 1800s, family law matters and matters of marriage were the responsibility of ecclesiastical courts in Britian. The history of marriage and its definitions have always been governed by a religious context. However, what makes the issue slightly different today is that government now gives particular status to that relationship apart from its traditional, religious connotation. Reid himself believes that you shouldn’t divorce the religious defintion from the legal definition because the two have always been bound up together (he uses specific case precedent to argue this, pointing out that our marriage laws still reflect religious definitions of marriage and that there isn’t anything wrong with that because the institution has always been bound to religion). I deviate from Reid here in my beliefs, and instead agree with Laycock who writes, “Marriage is for churches; government should confine itself to civil unions.” I think that this, combined with carefully crafted legislation to allow for religious, consciencious objectors to same sex relationships (when reasonable other accomodations are available) is the best solution that I see.
That being said, I think that much of what has gone on in the wake of Prop 8 has not been productive for anyone. I value any one else’s free speech rights as much as I value my own (and believe strongly in the right to picket, protest, and boycott), but to catagorize persons who do not believe in same sex marriage as hateful bigots and threaten to take away the tax exempt status of churches because they preach their deeply held religious beliefs about the sanctity of marriage shows the exact kinds of concerns that religious people have about what will happen to religion in the wake of legalization of same sex marriages. It is clear people are divided, what would be more productive is to try to craft solutions so that people can come together.
An honest, respectful dialogue is what is needed. This is what I pray for. Read the book and look at what a respecful dialogue from people on both sides of the debate looks like.