In a column at CNN.com, Marc Stern asks whether “gay rights” will infringe religious liberty. By “gay rights” he means eradication of sexual complementarity from marriage laws.
His answer is yes, sometimes: “In some instances the rights of same-sex couples will unavoidably trump religious liberty rights.” Why? If the Supreme Court redefines marriage by judicial fiat, religious observers will be forced to choose between obedience to conscience and full participation in public life, because the definition of marriage applies to everyone, including those who perceive inherent differences between men and women.
The evidence is now too extensive to ignore that one effect of redefining marriage is to force everyone to embrace a conception of marriage as a genderless institution, grounded in norms of companionship and personal fulfillment, rather than complementarity, fidelity, and permanence. Even half measures, such as civil unions, leave few domains for religious liberty. When the law abandons the traditional conception of marriage and sexuality in favor of the companionate conception, citizens must deny sexual complementarity, even in contravention of their core religious convictions, in order to participate fully in public life.
Against that uniformity, Stern affirms the richness of pluralism. “Under the Constitution, religious groups are free to urge and put into practice their different visions of the good, of moral life, and compete for adherents in the marketplace of ideas.” The Supreme Court should not be in the business of picking winners and losers,” he insists. “The Court can make all winners, or at least avoid allowing one side to suppress the other’s deepest beliefs. . . . Our government should not act to further one or another religious view of contested moral issues.”
These are all welcome statements. Other than abortion, no moral question is more vigorously contested today than the question of what marriage is.
The speech protections of the First Amendment guarantee that proponents of conjugal monogamy may continue to make the case that children need both a mother and a father, no matter what the law provides. But those protections apply only against state actors; private universities and businesses are free to silence religious moral witness. And any witness that religious believers are permitted will be blunted if they are forced simultaneously to contradict their speech by their public actions.
Our tradition of liberty is a tradition not only of free expression, but also of action undertaken by free institutions and associations, which are diverse and plural in their commitments, and which simultaneously supply human needs and develop moral character. Many of those institutions carry religious affiliations that guide their service to the public, including affiliations that support the distinct and irreplaceable natures of mothers and fathers.
The work that religious communities perform in service to a common good is one reason why pluralism is so important. For this reason, Stern’s insistence that “same-sex couples should not be denied the right to civil marriage” is dismaying. How can someone who sees the threat to religious liberty so clearly, and who understands and affirms the value of religious pluralism, endorse the very thing that most directly threatens religious liberty and pluralism?
Stern’s reasoning stumbles over a common misunderstanding of marriage law.
Stern seems to think that same-sex unions are illegal in those states that uphold conjugal marriage (an error that CNN anchor Don Lemon persisted in even after Ryan Anderson repeatedly explained to him how marriage law works). Stern writes,
Religious liberty, as the American Jewish Committee told the Supreme Court recently in a friend-of-the-court brief, does not give anyone the right to demand that someone else be deprived of the “right to live the most intimate portions of their lives according to their own deepest convictions.” That some religious groups regard same-sex marriage as an “abomination” does not authorize the government to ban such relationships.
It is difficult to imagine where this idea came from. It certainly did not originate in any informed understanding of law. There are no criminal or civil penalties for being in a same-sex relationship. No administrative agency will assess fines against those who solemnize same-sex relationships. No law prohibits unlicensed marriages.
Call it the Ban Myth. It seems to be doing a lot of work in public debates about marriage these days. The Ban Myth allows some people to portray marriage law as a restriction of the liberty of same-sex couples, rather than what it is: a legal distinction between inherently different relationships.
Yes, to distinguish in law between marriage and same-sex intimacy is to affirm that same-sex intimacy is something other than marriage. But to redefine marriage to include same-sex intimacy while excluding other relational arrangements—same-sex friendship, opposite-sex friendship, multi-partner unions, business partnerships—is also to discriminate. Yet no one could plausibly claim that the marriage law of a state that recognizes same-sex “marriage” operates as a ban on friendship or business partnerships.
Perhaps Stern means to argue that religious liberty should yield to the interest that same-sex couples have in seeing their relationships publicly affirmed as the moral equivalent of marriage. Of course, an open statement of that claim would demonstrate that Stern’s putatively neutral solution is anything but neutral. (Incidentally, if the stigma of not being recognized as married is a cognizable harm, haven’t single parents and polygamous and polyamorous groups suffered the same harm?)
Redefinition of marriage by the judiciary would force the companionate conception of marriage on all citizens, including religious observers. There are no exceptions or exemptions from the legal definition of marriage. Indeed, the definition of marriage cannot serve its purposes in positive law unless it is a law of universal application. That is precisely why marriage law is the most efficient mechanism for securing societal approval of same-sex intimacy. As a matter of principle, those who seek such approval cannot tolerate safe harbors for dissenters.
There are some limited protections for religious liberty in federal and state law. In some cases, a law that substantially burdens religious exercise must yield to religion unless it serves a compelling government interest. But if Stern gets his way, and the Supreme Court discovers in the Constitution’s penumbras and emanations a fundamental right to redefine marriage, then even those protections for religious liberty will prove ineffectual. What could be more compelling than protection of a fundamental constitutional right? And what religious scruples will be weighty enough to oppose such a right?
Once the Ban Myth is exposed as a falsehood, it becomes clear that religious observers are not trying to prevent anyone from doing anything. Indeed, it is legal approval of same-sex intimacy that imposes a doctrinaire behavioral code on the public. Consider just four cases that Stern himself has discussed in a recent book.
First, Massachusetts forced Catholic Charities to choose between affirming the companionate conception of marriage and losing its license to provide adoption services.
Second, before New York removed sexual complementarity from its marriage laws, a New York court ruled that Yeshiva University’s married-only cohabitation policy for university student housing discriminated against homosexuals. Of that case Stern has observed, “A fortiori, a rule allowing only heterosexual couples into married housing will be illegal” after marriage is redefined.
Third, a Christian camp association refused to open its quasi-public facilities for use in a same-sex civil union ceremony. The New Jersey Division on Civil Rights ruled that this refusal violated state civil rights laws.
Fourth, public high school students in Kentucky asked to be excused from mandatory diversity training on the ground that the course’s content was contrary to their religious convictions about human sexuality. A federal trial court ruled that they enjoyed no First Amendment rights to avoid the training.
This is not to mention human rights prosecutions in Canada against pastors; the dismissal of state employees in the United States for expressing their convictions about human sexuality; and the exclusion from public and private universities of student organizations that affirm the traditional conception of marriage.
The project of using marriage law to secure society’s approbation of same-sex intimacy is by its nature intolerant of anyone who is not willing to participate in the approval. So, the options are clear. Either the Supreme Court creates a new fundamental right to same-sex “marriage” or it preserves religious liberty.
There is a genuinely neutral solution, though it is not the one Stern has in mind. The Court can acknowledge that state and federal governments have an interest in drawing legal distinctions between manifestly different relational arrangements—without the ability to draw those distinctions, democratic governance is impossible—and can on that rational basis affirm California’s Proposition 8 and the Defense of Marriage Act.
The Court should leave to the democratic laboratory the complicated business of sorting out the various conceptions of marriage, human dignity, and religious exercise that are at work in this public debate. Unlike courts, legislatures are not obliged to take principles to their logical conclusions. They are free to experiment. Some states might oblige the interests of same-sex couples and other unmarried persons in ways other than redefining marriage. Some might redefine marriage and nevertheless ignore the logic of doing so, by preserving accommodations for religious observers.
Marriage law can accommodate religious liberty in one of two ways. The law can either define marriage as what it is—the monogamous union of one man and one woman—or it can adopt an illogical middle course between affirmation of same-sex couples and religious pluralism. A constitutional right to same-sex marriage would eschew both of those courses. It would destroy pluralism, and religious liberty with it.
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and a 2012-2013 Visiting Fellow of the James Madison Program in American Ideals and Institutions at Princeton University.