In recent essays here at Public Discourse, Mark Regnerus argued that same-sex marriage would harm marriage for everyone, and John Smoot argued that it would be bad for children in particular. Today I want to show the damage that redefining marriage does to religious freedom. At bottom, even the defense of religious liberty is a struggle over what is true and false about the meaning of marriage.
Should the truth about marriage—that it unites men and women so that children will have fathers and mothers—be defied by the laws of the land, we cannot expect the religious freedom of those who believe in that ancient truth to be respected under the new dominion of falsehood.
After all, if redefining marriage to include same-sex couples accords with justice and moral truth, there is no good reason for the new legal order to make room for “conscientious” religious dissenters, for clearly their consciences are malformed and unworthy of respect. Thus the fate of religious freedom, for scores of millions of Americans, stands or falls with the fate of conjugal marriage itself.
Some astute observers have noticed the dimensions of the problem and called attention to it. The Becket Fund for Religious Liberty filed a brief in both marriage cases now pending in the Supreme Court, arguing that the Court should not interfere with democratic legislative processes in this field, because only such processes can result in public policies that will prevent church-state conflict in the future. The brief describes many of the problems I will discuss below, but in the end I think it is too hopeful that same-sex marriage and religious freedom may be reconciled by lawmakers to any significantly greater extent than by judges.
Two groups of prominent religious liberty scholars (one led by Robin Fretwell Wilson, the other by Douglas Laycock) have written letters (such as this one from Wilson’s group) to state legislators and governors considering same-sex marriage bills, imploring them to include various statutory provisions that would afford some protection to religious freedom. Both groups have signally failed to achieve much, if any, meaningful accommodation of religious freedom in the recent legislative enactments of same-sex marriage in New York, Minnesota, Rhode Island, and Delaware.
The victorious legislators either do not see the conflict, don’t care about it, or actually welcome its arrival, relishing the further victories yet to come over the “bigotry” of religious dissenters. The last of these possibilities may be the likeliest, as Robert P. George suggested nearly a year ago here at Public Discourse. If so, our situation is dire indeed.
The “Wedding Day” Is Not the Real Issue
A great show is sometimes made in legislatures of how generously the advocates of same-sex marriage are willing to treat their adversaries, by assuring them that no Orthodox rabbis or synagogues, and no Catholic priests or parish churches, will ever be dragooned into giving their blessing to same-sex unions under the name of marriage. This sort of statutory “exemption” has become routine.
But the exemption is pointless because it is already accomplished by the First Amendment. No one thinks that any state could constitutionally coerce dissenting ministers, imams, rabbis, or priests into presiding over same-sex wedding ceremonies, or commandeer their sacred places of worship for such ceremonies.
Yet by pretending that such fears are in some way valid or genuine, same-sex marriage advocates keep the focus on them, cultivate the impression that their adversaries are worried about this matter and practically nothing else, and then declare that they have “compromised” in some full and fair way with the only real concerns on the other side by offering redundant legislative assurances. Every single state (as well as the District of Columbia) that has enacted same-sex marriage through its legislature has play-acted this dumbshow.
No state, on the other hand, has credited or accommodated the religiously grounded objections of other private actors—professionals or small business owners—to being dragooned into offering their services on the wedding day to same-sex couples. There are several well-known cases of bakers, photographers—even a religious nonprofit property owner—facing grave legal jeopardy for their refusal to offer their services or facilities in contradiction of their felt obligations to witness to the truth about marriage as it is taught by their faith.
When the above-mentioned religious liberty scholars have pleaded for accommodation of such persons and groups, they have gotten exactly nowhere. It seems that for same-sex marriage proponents, the religious freedom of saying “no” to same-sex weddings belongs only to “religious organizations,” not to similarly situated religious persons, despite the obviously personal character of the First Amendment’s free exercise of religion.
But the deepest conflicts between same-sex marriage and religious freedom will not occur on the day that couples tie the knot.
When the Honeymoon Is Over
Churches and other religious organizations are major employers. They operate schools, universities, hospitals, hospices, and clinics; social service agencies, retirement homes, eldercare and childcare facilities, food pantries, and soup kitchens; and other charitable ministries of every kind. They employ teachers, doctors, nurses, psychologists, counselors and clinicians, caregivers, food-service workers, housekeeping and grounds staff, even pool lifeguards. These religious ministries typically present themselves as equal opportunity employers, and they mean it.
Can they continue to do so in the redefined-marriage legal regime? If a church ministry hires someone in a same-sex marriage, or employs someone who enters such a marriage; or if it declines to hire such a person, or treats him or her adversely if already employed—in any of these scenarios there is trouble ahead, if federal, state, or local employment law considers it wrongful discrimination to treat persons in same-sex marriages differently from men and women in marriages.
The “ministerial exception” to employment discrimination law, affirmed 9-0 by the Supreme Court in the Hosanna-Tabor case in January 2012, will be no protection at all, since there is no way to shoehorn all these roles and functions into that exceptions category, no matter how broadly “minister” is defined. But to date, there is no state that has seen fit to accommodate the religious conscience even of avowedly religious ministries in this respect, let alone the consciences of religious persons doing business in the for-profit and nonprofit sectors.
Or consider public accommodations law, which can cover equal access to healthcare services, marriage and family counseling, daycare, adoption services, as well as religious schools and universities that are open to taking students of every faith or none at all. Churches and other religious bodies are among the largest providers of health, social service, and educational opportunities, but they understandably consider themselves obliged to provide them in keeping with the moral dictates of their faith.
The clash between the redefinition of marriage and religious liberty in this area was painfully evident when Catholic Charities in Massachusetts, after a century of operating an adoption agency that matched children with new parents, ceased offering this service to the community rather than be forced by the state to place children with same-sex couples contrary to Catholic teaching. Just two states—Connecticut and Maryland—permit religiously affiliated adoption and foster-care agencies (but no others) to place children exclusively with married moms and dads. But even this came at a price no other adoption agency must bear: these agencies are now ineligible for any share of public funds that the states may provide.
Consider also the laws at various levels of government against housing discrimination. If a religious university offers housing to married student couples, will it be charged with discriminating if it denies such housing to same-sex married couples? Only two states with same-sex marriage—New Hampshire and New York—make any exemption for “religious organizations” in such situations, and it is not exactly settled that a university such as St. Anselm or Fordham would fall under these exemptions.
Control of Education
And on the subject of universities and schools, consider the matter of the accreditation of higher-ed programs and whole institutions, and the control of curriculum in primary and secondary education. Already we can see individual degree programs compelled by accrediting bodies, in fields such as counseling, to conform themselves to the transformed understanding of marriage and sexuality, as some religiously dissenting students have discovered to their cost.
Whole colleges and universities are themselves accredited by regional private accrediting associations—and the accreditors are in turn accredited by the US Department of Education, and recognized by the DOE as authoritative regarding which institutions grant valid degrees and enroll students eligible for federal aid of various kinds. If and when the regional accreditors and the DOE decide that the norm of “respect” for same-sex marriage must pervade higher education, which religious colleges and universities will keep standing firm in the winds that will blow?
In K-12 education, state authorities typically mandate that all schools, public and private, religious or secular, meet certain curricular goals and standards. This is fairly uncontroversial when it comes to math, science, even history. But will states mandate the teaching of the new understanding of marriage and family, and force it on religious schools? The possibility is not terribly remote.
The Tax Man Cometh
Finally, consider the matter of tax exemption. In its 1983 ruling in Bob Jones University v. United States, the Supreme Court affirmed, by an 8-1 vote, the power of the Internal Revenue Service to declare that it was “contrary to public policy,” since the passage of the 1964 Civil Rights Act and the Court’s own 1967 decision in Loving v. Virginia overturning bans on interracial marriage, to grant tax-exempt status to a religious university that admitted both white and black students but forbade them to date and marry one another. All nine justices presumed the sincerity of the university’s stated religious rationale for its policy, and none of them (even the lone dissenter) thought it mattered a bit. The Court’s decision forced Bob Jones University to change its policy.
One can deplore that university’s former policy and applaud the change that was forced on it. But we must recognize that the Bob Jones precedent is a loaded gun waiting to be picked up and used against religious schools, universities, social service agencies, hospitals and clinics, and charitable ministries of all kinds. If same-sex marriage is the new normal, and dissent from it on religious grounds is the new bigotry, then with a stroke of a pen the IRS can destroy the tax-exempt status of every para-church institution in the country that is not on board with the redefinition of marriage—and perhaps of the core institutions too, the churches, synagogues, and mosques themselves.
The Law as Moral Teacher
And after all, if the new meaning of marriage represents progress toward a more just society, why shouldn’t the coercive power of the state be deployed in all these ways? Religious freedom has its limits, it will be said. Correction: This is being said, in all the liberal-dominated legislatures where marriage has been redefined in recent years, which is why so little accommodation is being made for religious conscience, and why such tiny accommodations as have been made are almost certainly doomed to be evanescent, repealed in coming years as the vestiges of old compromises with backwardness that are no longer necessary.
And the Bob Jones example points up the perfect reasonableness of this view, if those who hold it are right about marriage: we do not make room even for “private” bigotry in our society without imposing costs, not even bigotry with a religious basis.
The transformation of the law to redefine the meaning of marriage will be bad for marriage, bad for children, and very bad indeed for those people of faith who want to maintain their faith’s teaching on marriage, in their religious institutions and in their work. The preservation of meaningful religious liberty, it turns out, is inseparable from the preservation, in our legal order, of the truth about marriage. They stand or fall together.
Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.