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.

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