Same Sex Marriage, the Courts, and Religious Liberty: How Much of a Conflict?

Time for some blawging.

Rod Dreher makes the case, once again, that same-sex marriage presents a unique and unavoidable conflict that will drastically undermine religious liberty in this nation, concluding that the “conflict between gay rights and religious liberty is deep, serious and irresolvable to the satisfaction of both.”  Dreher further argues that:

“It’s one thing if the boundaries of gay rights are set by statute, as in the DC case. It’s another if they are set by a court in a constitutional case. In the former, exemptions for religious organizations can be carved out — but if the Supreme Court decides that gay marriage is a constitutional right, then religious organizations will be given much less room to move, and there’s nothing they will be able to do about it.”

On both counts, Rod misunderstands the nature of the conflict and the role of the legislature and courts in creating (or potentially alleviating) that conflict.

First, the conflict here is definitively not between gay marriage and religious liberty.  It is instead between laws regarding private discrimination and freedom of association, or perhaps between licensing laws and freedom of religion.  As they affect the private sphere and specifically religious organizations, gay rights, and specifically same-sex marriage, represent at most an expansion of existing conflicts rather than any new type of conflict.  Even here, the conflict arises not from whether or not same-sex marriage is permitted, but instead from whether or not statutory laws recognize sexual orientation as an impermissible basis for private discrimination (whether in an employment context, public accommodations context, or otherwise), which is independent of whether same-sex marriage is permitted.

Moreover, Rod’s trust of legislators over the courts as being more likely to carve out exceptions to protect religious liberty is simply incorrect.  History in fact shows us that the opposite is true: the courts are more likely to carve out exceptions to resolve Constitutional conflicts than are the legislators, who have a tendency to too-easily delude themselves into believing that nothing they do can conflict with Constitutional liberties.

Rod makes one specific claim that presents a clear opportunity to demonstrate the above two points.  Rod writes:

“The usual cry that goes up from gay rights backers is that no pastor is going to be forced to marry a gay couple or be censored if he preaches against homosexuality, so there’s no problem at all. That’s simply untrue.”

With all due respect to Rod, his claim ignores a mountain of case law from the last several decades that makes the opposite readily apparent.  For instance, despite anti-discrimination statutes that contain no exceptions for religious liberty, the courts have fairly uniformly adopted a doctrine of prohibiting so much as an inquiry into religious matters.  This doctrine is called the “ministerial exception,” and to my knowledge has been adopted by every court that has had the opportunity to consider it since it was first proposed by the Fifth Circuit in 1972’s McClure v. Salvation Army, 460 F.2d 553.

The Second Circuit’s recent adoption of the doctrine in Rweyamamu v. Cote, 520 F. 3d 198 (2008), is illustrative.  The plaintiff was a Catholic priest who alleged he was denied a promotion and eventually fired due to racial discrimination.  The diocese had claimed that he was dismissed because of the quality of his homilies and his insufficient devotion to his ministry.  After the trial court quickly dismissed the case, the Second Circuit upheld the dismissal, holding that any inquiry whatsoever into the church’s motivations for the firing would itself be an impermissible violation of the First Amendment right to the free exercise of religion.  Because the court could not inquire into the legitimacy of the church’s defense without violating the First Amendment, it had no choice but to dismiss the case entirely.

Although Rweyamamu was a priest, and thus a clerical employee, the Second Circuit made clear that its holding also had implications for lay employees, stating “even when we permit suits by lay employees, we will not subject to examination the genuineness of a proffered religious reason for an employment action.”  In other words, the courts have created an exception to general anti-discrimination laws that prohibits them from so much as inquiring into the legitimacy of church doctrine.  This particular exception also directly refutes Rod’s claim that same-sex marriage, combined with anti-discrimination laws, will result in churches being forced to perform gay marriages or a pastor being censored for preaching against homosexuality – the exception makes clear that the courts simply will not take a case that requires them to inquire into the legitimacy of church doctrine, as they would need to do in order to handle any allegation of sexual orientation discrimination.

Courts have created exceptions in myriad other contexts, as well, including contexts where they were recognizing a right that the legislature had failed to recognize – in Heller, for instance, it was made quite clear that despite the existence of an individual right to keep and bear arms, that right had significant limitations such that most gun control laws would likely withstand scrutiny.  The notion that any right first recognized by the courts will inevitably lack any exception for religious liberty is empirically wrong and ignores that, as often as not, it is the legislature that makes insufficient provision for the protection of religious liberty, leaving it to the courts to create such provisions.  Indeed, the very example that has led to this discussion – the threat of the DC Council to pull its contracts with Catholic Charities – is a result of a legislature not only failing, but possibly actively refusing to grant exceptions to religious groups, no matter how strong the Constitutional arguments in opposition.

That’s not to say that same sex marriage and gay rights present absolutely no conflict for religious liberty.   Rather, to the extent those conflicts exist, they exist as a result of government interference with the private sector in the first place (for instance, in the form of public accommodations laws such as that under consideration in the DC example), and have existed for a very long time.  It is only now, however, that the conflict seems to be worthy of discussion.

Rod cites, for instance, this Chai Feldblum article, for the proposition that any expansion of gay rights must come at the expense of an equal contraction of religious freedom (and vice versa).   I think Rod misunderstand’s Feldblum’s point, which almost exclusively emphasizes the effects of anti-discrimination laws regulating the private sector rather than laws requiring the State to be morally neutral with respect to homosexuality.  True, she mentions civil unions and SSM in passing at various points, but so far as I can tell, every single example of a conflict between gay rights and religious liberty involves some sort of a public accommodations or employment discrimination law.

She fails to distinguish – nor does she even attempt to distinguish – how anti-discrimination laws that cover sexual orientation present a greater or materially different conflict for religious liberties than other anti-discrimination laws such as laws that prohibit discrimination based on marital status or military status or based on race or religion.  It is impossible to conceive how a law prohibiting sexual orientation discrimination in the private sector is a greater or materially different burden on religious liberty than a law prohibiting religious discrimination!

Perhaps these interferences with freedom of religion and of association are justified, perhaps they are not – that’s not really relevant to my point.*  What is important here is that to the extent there is a conflict between gay rights and the free exercise of religion, it is solely within the context of whether anti-discrimination laws writ large present an unacceptable conflict with the free exercise of religion.  Same sex marriage, in and of itself, thus presents no greater a problem for religious liberty than does no-fault divorce.  It is only laws that prohibit private discrimination in the first place that actually present a conflict with the free exercise of religion.  It has also quite often been the courts who have had to step in and create exceptions to those laws to alleviate the conflict with religious liberty and freedom of association due to the legislature’s failure to adequately do so.

*Certainly, though, almost all of us would agree that requiring a government employee acting in a non-discretionary capacity to administer his job in a non-discriminatory fashion is not a threat to that employee’s religious liberty – in choosing to work for the government in such a capacity, he is agreeing to administer the law of the land neutrally and regardless of his own personal religious beliefs.  To believe otherwise would be to allow that employee to “establish” his religion as the government’s official religion for purposes of that task, and to quite severely burden the free exercise of religion of all that come within his purview.

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21 thoughts on “Same Sex Marriage, the Courts, and Religious Liberty: How Much of a Conflict?

  1. in a word….nice.

    You’re like all smart ‘n stuff with this legal hooey.

    Sadly, saying emotional things like, “They took our religious liberty!!!” (akin to South Park’s “They took our jobs!!!”) will probably convince more folks.

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  2. Kudos! I favor gay marriage and have run into this argument frequently. The counterargument I’ve had to use is that too many supporters of gay marriage would never support a law that would force a Catholic Church to marry gays. I believe this to be true, but the trust level amongst religious people is rather low. Saying that they couldn’t even if they wanted to may be much more convincing.

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    • Thanks, Trumwill! I should add that the Rweyamamu case is actually one of the narrower formulations of the ministerial exception – other circuits have broader formulations that offer even more protection for religious organizations. It’s not an absolute protector for religious liberties, I should add – but, again, whether or not we allow gay marriage only minimally increases existing infringements rather than creating entirely new ones. The only truly relevant battle for religious liberty concerns is whether sexual orientation is recognized under anti-discrimination laws and whether the courts will create/recognize religious-based exceptions to those laws.

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  3. Very nice essay.

    I’ve long thought that “religious freedom” allows for sermons in this church here about the wickedness of X and sermons in that church there about the awesomeness of X. I’ve long thought that “religious freedom” allows for churches to say “we only minister to the following people” while allowing for other ones to say “we minister to everybody except those that only minister to the following people”.

    I also can’t say that I understand the nuances of the argument that claim that two dudes getting married “weakens” marriage. (“Should we petition Canada to change?”, is one question I’ve asked of people making that argument and they tell me that I’m obviously not taking the conversation seriously… which is fair enough but it’d be easier for me to take the conversation seriously if they’d answer a fairly straightforward question.)

    (I do understand (though I do not share) the fear that two dudes will go up to the chapel and be told “we don’t serve your kind here, why don’t you try those godless Unitarians” and they, understandably, get pissed off and sue and, understandably, lose the case in court and lose the church.)

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  4. Great article. I had this debate hashed out in a bible study a while back, and made a similar argument: the extent to which gay marriage limits religious activity is limited to actions the government has taken to explicitly favor religious activities (which people argue “marriage” is, as opposed to civil unions). Their arguments eventually boiled down to” I don’t want our son growing up thinking being gay is okay” and so any measure that made it more acceptable to be gay in society was wrong. No matter what Rod tries to justify, at its bottom that sentiment – and losing out on government handouts a la DC – is the motivation behind the anti-gay marriage movement.

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  5. Rod doesn’t really do any research for his posts, I’ve found, and knows nothing about law. A few months ago he was in a panic over the case about the school that kicked out a lesbian student, which had already been litigated, and the school won.

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  6. Rod’s point is stunningly shallow, so much so that when I first read his thoughts on the matter I assumed I must be missing something in his writing because he couldn’t possibly be making such a weak point. The only “right” the Christians would lose in this case would be the “right” to use the government as an agent of their bigotry and it speaks to the depth of their bigotry that this is not achingly self evident to them.

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  7. Well you have to keep in mind that Rod has been banging the drum about the gays coming to get all faithful believers ever since proposition 8 went down in California. He seems to genuinely think that one youtube of angry gays chasing some bible thumpers out of Castro is proof positive of an anti christian pogrom commencing.

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  8. Great article! I think, at the end of the day, Dreher is afraid not of government force, but of social sanction. He wants it to be OK to discriminate against gays. His biggest worry, I think, is that churches that refuse to perform same-sex marriage will be treated the same way as those who refuse to perform interracial marriages. It’s legal, but those who do it are shunned.

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  9. The link provided to support the assertion that the DC Council threatens to pull its contracts with Catholic Charities does not, in fact, support that claim. The DC Council would prefer that Catholic Charities continue its work under city contracts but expects the recipient of any contract to abide by the non-discrimination law. The threat was issued by the Archdiocese when it declared that these charitable, non-religious functions would cease if the city amended the law. As Mark points out, it is common for religious discrimination to be defended by claims of infringement of religious liberty. Yet, obviously, this slippery slope works both ways. The Archdiocese is essentially threatening innocent third parties in order to expand the scope of its own, internal discrimination policies into the public sphere. And that, as they say, is not very Christian of them.

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  10. I’m new to this blog, and not an attorney, so please grant me a little leeway here. I’m basically confused as to why religious belief *should* except someone from anti-discrimination law. Yes, I know we have Constitutional protection for the free exercise of religion and also judicial precedent. That’s not what I’m talking about. On a more philosophical level, I’m just curious why “religious” belief should be acceptable as a basis for discriminating, when “philosophical” belief or “worldview” or non-religious but deeply held “personal values” do not get this same latitude. Why should the religious convictions of one person be treated as inviolable, when another person’s worldview does not get the same protections? Why should a Baptist preacher be allowed not to marry a gay couple, but the gay couple can’t refuse to serve the Baptist preacher in their place of business because of the preacher’s refusal to marry them? Is it really just the claim of heavenly inspiration that makes discrimination OK in the first instance? I don’t see why religion should be given protections that other deeply-held but non-religious belief systems don’t enjoy.

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    • For the record, I am 100% down with opening a restaurant and the owner refusing to serve a particular group of clients. “We don’t serve your kind here”, the owner could say. Then those people (Baptist ministers, in this case) could claim that they have a right to eat wherever they wanted, even at the “Methodists Only” diner.

      I think that the government, of course, ought to not have a lock on permits for restaurants, of course. If the Baptists want to open a restaurant, the government should pretty much rubber-stamp their application. I oppose the very idea of making things really easy for Methodists to open a diner but to put roadblocks in front of Baptists…

      But I’m one of those evil people who think that the Methodist Diner should be allowed to have a smoking section too, if the owner is inclined to allow smoking on his property. They can put a sign in the window:
      “Cigarettes YES! Bapists NO!”

      And if you don’t want to eat at the diner, you don’t have to. You can go to the Baptist diner down the road. They don’t smoke, or drink, or chew, or date the girls who do. It’s a much nicer environment to get a cuppa and a slice of pie. No cigarette smoke or nothing.

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    • Without getting into the general freedom of association issues inherent in any anti-discrimination law, the case for making a special exemption for religions rests as much, and possibly more, on the Establishment clause as opposed to the free exercise clause. When government starts telling religions qua religions what they can and cannot accept as a matter of religious doctrine, the government is in a very real sense “establishing” its own religion. There are limitations on this, of course, but generally they have to do with matter of criminal rather than civil violations. Presumably, part of the rationale for this would be that the State’s interest in enforcing criminal laws of general applicability is far greater than its interest in enforcing civil laws of general applicability.

      In the case of discrimination laws, there’s also an added element of inquiring into the actor’s motive that does not exist in the relevant criminal contexts – if you’re bringing someone up on a drug charge, you don’t need to prove that they had a bad reason for having the drugs, just that they knowingly possessed the drugs; on the other hand, if you’re going to file a discrimination suit against someone, you need to be able to show not only a prima facie case of discrimination, but also that their proffered, non-discriminatory reasons for discriminating are merely pretexts. In the case of a religious organization arguing that they refused to marry a couple not because they hate gays but because gay marriage is against their religious doctrine, there’s no way for a court (which is an institution of the State) to reach a decision on whether that rationale is pretextual without engaging in a rigorous inquiry into the legitimacy of the church’s doctrine.

      There is arguably a distinction to be made where you’re dealing with an employer who happens to be a member of the church rather than the church qua church on the grounds that an employee’s private activities are not conceivably relevant to the performance of his job. In other words, it’s intrinsically true that part of the job description of a Catholic priest or a Baptist minister or a Muslim imam or a Jewish Rabbi is being a good Catholic, Baptist, Muslim, or Jew; however, in most forms of lay employment, being a good Catholic, Baptist, Muslim, or Jew is probably not relevant to one’s job description.

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  11. “It is impossible to conceive how a law prohibiting sexual orientation discrimination in the private sector is a greater or materially different burden on religious liberty than a law prohibiting religious discrimination!”

    This is a very important point, and one all too frequently overlooked by commentators who complain that laws prohibting discrimination based on sexual orientation threaten religious liberty. If a Christian innkeeper’s religious freedom is harmed by being forced to accommodate a same-sex couple, then a Muslim innkeeper would have an equally strong claim that his freedom is harmed by being forced to accommodate unmarried women, or women who don’t cover their heads, for example. Is a shopkeeper who believes that graven images are blasphemous have a right to refuse service to a Catholic who wears a crucifix? There are endless examples, and they all point to the reasons why we don’t allow religious exemptions simply because a businessperson has strongly held religous views.

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