In Louisiana, a new bill has been proposed to protect those who have suffered unjust government discrimination. Opponents are demonizing the bill’s supporters and calling them names, misrepresenting the contents of the proposal, using scare tactics, and generally acting with fundamentalist zeal instead of dispassionate deliberation and rational discourse. They would deny to an entire class of Louisiana citizens legal protection from discriminatory acts, simply because members of that class do not share their own moral views.
Naturally, those zealous opponents are supporters of redefining marriage to include same-sex couples.
The bill is known as the Louisiana Marriage and Conscience Act. As its name suggests, it is designed to codify legal protections for those who have moral and religious convictions about the nature of marriage and whose convictions are out of favor with cultural elites and powerful political actors. Specifically, it would protect those who perceive that marriage is the union of one man and one woman. The bill is timely, necessary, and well-justified.
The Supreme Court of the United States appears poised to impose on all fifty states a radically new and ill-considered definition of marriage that finds no support in our nation’s history or traditions. Many Americans remain skeptical of that social experiment and believe, for reasons of moral and religious conscience, that they have a duty not to participate in it. The Louisiana Marriage and Conscience Act would protect those people from government discrimination and preserve the state of Louisiana’s commitment to freedoms of conscience, religion, and expression.
The Price of Citizenship?
Protections for such convictions are eroding quickly, and powerful actors want to undermine them more. Indeed, proponents of marriage revision and sexual-identity rights are not making much effort to conceal their designs to drive people of conscience out of the public square.
This was illustrated vividly during the recent Supreme Court oral arguments in Obergefell v. Hodges, when the Solicitor General of the United States admitted that “it’s certainly going to be an issue” whether religious educational institutions will be permitted to retain their tax-exempt status if they define marriage as the union of a man and a woman in their policies. The fact that religious institutions are likely to face discrimination in the new regime of marriage revisionism surprised no one who has paid attention to the debate over marriage these last several years. But that the Solicitor General felt comfortable acknowledging the fact surprised many lawyers. Conventional wisdom is that a lawyer arguing for a change in the law should stand on the narrowest possible legal ground and should ameliorate any concerns that a court might have about the implications of his position. It seems that the Solicitor General views the loss of religious freedom not as a cause for concern but rather as an uncontroversial fact entailed in the redefinition of marriage.
In this environment, the need for the Louisiana Marriage and Conscience Act is manifest. The First Amendment, federal RFRA, RLUIPA, state RFRAs, and other legal protections for our first freedom do not establish conclusive rights to act or refrain from acting on the basis of one’s conviction that marriage has a particular nature. Conscience protection depends on the discretion of lawyers and judges, who define the interests implicated in any dispute between a conscience claim and a sexual-identity claim and balance those interests against each other.
In recent months, that balance has come out against conscience claimants in nearly all cases. More and more religious observers are finding themselves in the position of an earlier casualty of the sexual-identity revolution, the owners of Elane Photography, whose owners were, in the words of a judge of the New Mexico Supreme Court, “compelled by law to compromise the very religious beliefs that inspire their lives” as the “price of citizenship.”
Very Narrow Protections
The Louisiana bill is considerably less ambitious than what is reasonably necessary to meet this developing threat to religious liberty and much narrower in scope than what longstanding law would justify. Since before the founding of our nation, Americans have always enjoyed the liberty to act in the public square on the basis of their moral and religious convictions that marriage is the union of a man and a woman. This freedom of conscience and action has always extended to all aspects of public life.
By comparison, the Louisiana Marriage and Conscience Act would prohibit only state action “against a person, wholly or partially, on the basis that such person acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.” It does not apply to rights and duties in private law. And it does not even apply to all state actions. It enumerates four discrete categories of action that are prohibited.
Under the bill, the State of Louisiana could not:
(1) Deny or revoke an exemption from taxation . . . of the person who is acting in accordance with the religious belief or moral conviction [that marriage is or should be recognized as the union of one man and one woman].
(2) Disallow a deduction for state tax purposes of any charitable contribution made to or by such person.
(3) Deny or exclude such person from receiving any state grant, contract, cooperative agreement, loan, professional license, certification, accreditation, employment, or other similar position or status.
(4) Deny or withhold from such person any benefit under a state benefit program.
In light of how narrow the bill’s protections are, the rhetoric of the bill’s opponents seems divorced from reality. Take a look at a few of their responses:
-The executive director of the Louisiana chapter of ACLU warned that the bill would legalize spousal abuse. She opined that an earlier version of the bill “basically dismantles the Louisiana legal system. The whole criminal code goes out the window.”
- Louisiana’s House Speaker Pro Tempore called the bill “bigotry enshrouded in religion.”
- The leading campaign against the bill asserts that it would “legalize discrimination” and is designed “to cloak discrimination against LGBT people, and specifically same-sex couples and their families, in the guise of the protection of religious practices.”
- Corporate giant IBM opined that the bill would protect discrimination and “create a hostile environment for our current and prospective employees.”
These characterizations range from inaccurate to fanciful. The bill expressly states,
Nothing in this Part shall be construed to create any right of discrimination between private persons, but the provisions of this Part are instead intended to prevent, notwithstanding any other law to the contrary, this state from taking any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman.
So, the bill can be characterized as authorizing unlawful discrimination only if one assumes a controversial answer to the very question at issue: namely, whether state law should require everyone to treat same-sex couplings the same as natural marriages for all purposes. No states, not even those whose laws refer to same-sex couples as “married,” treat same-sex couplings and natural marriages exactly the same for all purposes, nor could they without eliminating ancient and important laws that secure connections between children and their biological parents. The reality is that the Louisiana Marriage and Conscience Act would prohibit unjust discrimination, even as it preserves the ancient right to distinguish between marital relationships and same-sex relationships, however designated in law.
This Louisiana Marriage and Conscience Act is so clearly necessary and justified to prohibit unjust discrimination that its opponents should be asked to explain why they are indulging in such hysterical rhetoric. Are they so afraid of Louisianans who express and act on the view that marriage is the union of a man and woman?
Room for Reasonable Disagreement
If the case against natural marriage is as overwhelming as our cultural elites and federal judiciary seem to think it is, then why must those who believe in marriage be driven from the public square with the force of law? If no rational person can believe that marriage is the union of a man and a woman, then any expressions of support for natural marriage will not gain any traction within sound minds. So the Left should be content that over time opposition to same-sex marriage will simply disappear.
Maybe the Left fears that unsound minds cannot be trusted to grasp the truth about the nature of marriage. One who is prone to irrational or emotional thinking can easily be taken in by falsehoods. So perhaps the ACLU, IBM, and sexual-identity rights groups think that Louisianans are inherently irrational. That would explain their histrionics.
The truth is that Louisianans, like Americans generally, disagree about the nature of marriage and they do so because they have reasons to believe what they believe about marriage. States do not use their considerable power to prevent marriage revisionists from advocating the redefinition of marriage or from acting on their views, and states should not use their power to prevent natural marriage proponents from acting on their conviction that marriage is the union of a man and a woman.
Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law and author of Property and Practical Reason, forthcoming from Cambridge University Press.