Leonardo"s Notebook by Mattheus Mei

I have been impressed with the urgency of doing. Knowing is not enough; we must apply. Being willing is not enough; we must do.

Wednesday, June 18, 2008

Gay Marriage and Religious Liberty

I understand the fears of many religious conservatives who point to such far off places as Scandinavia and as close as Canada to envisage such impugning of religious liberties, whether its from preaching homosexuality as sin or denying services to same sex couples, this is America where we don't have an established state supported church. So it's illogical to point to such places to cite examples.

We separate the sacred from the secular but still allow them to inform, yet not conform, each other.

So it was with that mindset that I read an article in the CSM titled Gay Marriage: a new bind for Church Groups, an attempt to discern what appears to be becoming a collision of two fundamental American Rights and Notions, that of Equality and that of Religious Freedom with religion, as Mark Stern speculates "As gays come out of the closet, conservative religious people are put back in the sanctuary."

But CSM isn't alone in presenting a handful of instances in lower courts of what appear to be the chipping away of religious liberty, NPR also had a story yesterday on it citing several cases passed and pending.

As Dale Carpenter points out though

These examples, and others given in the NPR report and by gay-marriage opponents, illustrate many things. They show that there are indeed antidiscrimination laws that apply to those who provide services to the public. They show that these antidiscrimination laws sometimes require individuals and organizations to do things that these persons and organizations claim violate their religious beliefs. They show that conflicts between antidiscrimination laws and religious belief often wind up in court, requiring judges and other decisionmakers to decide how the conflict should be resolved under the law and the Constitution. They show that on at least some occasions antidiscrimination laws are held to trump religious beliefs and that, as a result, religious individuals and organizations must sometimes decide whether to comply with the law or to stop providing services to the public. They even show that many of these disputes arise in the context of religious actors who object in particular to gay relationships.

What these examples do not show, however, is that gay marriage is "repressing" or "obliterating" religious rights or that "a storm is coming" because gay couples are marrying. With the exception of the Vermont clerk refusing to perform a civil union ceremony (about which more below), none of them involve a claim of discrimination provided by the gay couples' status as married or as joined in a civil union or domestic partnership. All of the cases involve the application of state laws barring discrimination on the basis of sexual orientation that pre-date the official recognition of gay relationships. Neither the viability of the discrimination claim nor the viability of the religious objectors' desired exemption turns on whether the gay couple is officially recognized. In most of the cited cases, in fact, the couples' relationship was not recognized by the state, but adding such a status to the cases would change nothing about their legal significance.

and he and I agree on the remedy for these matters

I think the law should make room for them to a considerable extent. It should be possible, in particular, to recognize gay marriage and to continue to protect religious faith at least to the extent we have already done so when religious views about marriage diverge from the secular law of marriage. Of course no religion should be required to change its doctrine to recognize gay unions. Of course no religious official should be required to perform a same-sex marriage (or an interracial wedding, as some once objected to, or a second-marriage wedding, as some object to now, or any other wedding he objects to). These things have never been required and nobody is asking that they should be.

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion — all without extinguishing religious faith.

It goes back to my original point, We separate the sacred from the secular but still allow them to inform, yet not conform, each other. It's the driving notion of out of many one and that though the majority rule, it's never at the expense of the minority. It's the wonderful tension of such that has made the American experiment such a success, that we can pursue freedom and equality at the same time and not at the expense of another, except perhaps during the past eight years if you're Iraqi.

Sphere: Related Content


Gashwin said...

I'm working on a major post that argues the exact opposite. It's not quite as simple and facile.

Canada does not actually have an established church, and the issue has nothing really to do with established churches. There is no logic in bringing up this argument.

The issue boils down to this: the acceptance of the human dignity of gay people now seems to encompass the idea of both non-discrimination (interpreted very broadly), as well as the idea that any kind of objection to homosexuality or homosexual activity (whether nuanced like the Catholic Church does or not) is automatically conflated to "hate speech" (that's what's happening in Canada). We're not there yet in the US. We're getting there. Especially thanks to the political left.

The NPR story, which is one of the most balanced things I've heard so far, is worth paying attention to.

I am particularly struck by the case against a photographer who refused to photograph a same-sex union.

So, as "human dignity" more and more equals the idea that "one has to accept gays in every dimension and aspect of their lives" and that this perspective gets the backing of the state, we will see more and more conflict and lawsuits, and I am quite fearful, as the "homosexuality = race" trope firmly implants itself in our minds, that this will not stop at the door of the sanctuary.

And what the heck was that remark about Iraq? How was that germane at all to the argument? Iraq is a mess, a huge mess. But five years ago it was such a paradise, wasn't it?

Mattheus Mei said...

The photographer case is interesting... I believe it boils down to the same understanding of 'colored people' aren't allowed in this restaurant, or that convenience store: mainly if you're providing a service to the general public then you can't deny someone access to your services based on race or sexual orientation or gender or even religion. I think the inclusion of religion in these anti-discrimination laws is important and will be what draws the line and makes it stop at the sanctuary door which is where it should stop.

You're right,Iraqi wasn't appropriate, I suppose muslim/arabic would be more appropriate in that you're looked at with suspicion and denegrated by the WASHP majority all of that being applied to that last phrase: we can pursue freedom and equality at the same time and not at the expense of another.

Gashwin said...

The photographer case simply bolsters my claim: underlying all this is a race=orientation analogy when it comes to discrimination.

The photographer was providing a public service. Yes. But, for them to object to performing a same-sex wedding was akin to discriminating against gay people.

And also remember we're talking about a private photographer. Nothing at all to do with public funds, or receiving public funds.

If this analogy takes hold (and it has quite widely), then to object to anything gay people do is the equivalent of objecting to to gay people per se, i.e. the equivalent, in the eyes of the state, of being a racist.

That is the problem.

Obviously, I disagree. I don't think sexual orientation is akin to race. The US doesn't recognize orientation as a "suspect" category in the same way it does religion, race, gender or national origin. I t probably won't stay that way, but that's a separate issue.

And even if that doesn't change, the legal storm -- pace the apologists -- is just beginning.

And the Canadian situation is even more horrific, because it involves speech, and not contracts or exchanges or workplaces or equal access.

But, as long as people are being forced to accept gay people -- i.e. forced to accept the moral legitimacy or homosexual activity -- c'est la guerre ... vrai?

Mattheus Mei said...

It's only a war if you view it as such and don't view it as a matter of human dignity - and I'm not talking marriage, I'm talking based on sexual orientation alone which has already been established as an immutable quality, that argument is over, it was so 30 years ago with the Civil Rights and Liberation movements, it's only been a hold out experience of us in the south and as individuals, not collectively - it just so happens that now the individual is adopting the mantra of the collective.

As far as the Canadians are concerned that won't happen here, our legal sytem and judicial precedent don't allow for prosecution of such speech unless you can proove it's direct cause to some kind of physical harm. If it worries you so much about this Canadian law then how do you explain white supremicists getting off the hook for teaching radicalism that causes the death of black americans. The only caveat perhaps is in the case of radical islamic clerics, but still you have to pretty much say "you must harm this person" for it to be an offense. That's where we as Americans draw the lines with our European and Canadian cousins, and that won't and shouldn't change anytime soon. If it does it's more likely to be at the hands of a George Bush than a Barack Obama.

Anonymous said...

...ask all the people who have been tasered/ arrested for speaking out at a meeting, on how they were treated when they spoke! A business has the right to deny providing their services to anyone they choose! The trick is to never express why you are denying your services. I disagree with using the word marriage to describe a civil union but as far as human rights are concerned if I wanted to enter into a civil union with my sister, such hat we became a household and she had power of attorney and all the other legal rights that my wife has then so be it who am I to decide that such a thing is wrong. Yes there is the argument about tax breaks being an incentve to provide an enviroment to produce and raise off spring without discrimination towards those heterosexual couples that do not for what ever reason. But if a homosexual couple (civil union) wanted to pursue (note I did not say that they had to be found fit to adopt but they at least have to fill out an application with an adoption agency and submit it) adopting then they should get the same tax breaks, if they do not then no tax breaks. It is not exactly equal, but I can not think of a non invasive way to prove that a homosexual couple is open to conception.