Vol. 19 No. 2 (February, 2009) pp.162-166
SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS, by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson (eds). Lanham, Md: The Becket Fund for Religious Liberty and Rowman & Littlefield, 2008. 344pp. Cloth. $85.00. ISBN: 9780742563254. Paper. $34.95. ISBN: 9780742563261.
Reviewed by Emily R. Gill, Department of Political Science, Bradley University. Email:
Gill [at] bradley.edu.
This timely edited volume begins with a thought experiment. It assumes that civil marriage has become inclusive of same-sex couples and explores the impact of this change on religious freedom. Its seven chapters explore the types of emerging conflicts involving religious freedom and also speculate upon how such conflicts might be resolved. As Douglas Laycock notes in his afterword chapter, “This is a depressing book” from a civil libertarian perspective, because all of the other contributors, whatever their religious or political perspectives, “agree that same-sex marriage is a threat to religious liberty” (p.189). On the other hand, both religious belief and sexual orientation may be regarded as core constituents of personal identity. Therefore, it should not be surprising that the practice of one’s beliefs or sexual orientation would produce tension when living out one’s sexual identity conflicts with others’ living out their religious identities, and vice versa. The contributors’ detailed analyses of these conflicts are both instructive and provocative, and they should aid readers in thinking through these issues to draw their own conclusions.
Although Marc Stern believes that clergy will not be forced to perform marriages of which they disapprove, he foresees a host of other religious disputes. He fears that the widespread acceptance of same-sex marriage, plus civil rights laws that prohibit discrimination on the basis of sexual orientation, will compel religious institutions and individuals to treat same-sex couples as married even if this violates their beliefs (p.25), based on both actual and hypothetical examples. His exhaustive review encompasses religious settings, the workplace, public schools, commercial and professional licensing, public funding for charities, and any part of the public square that may be affected by efforts to banish anti-gay religious messages. Exemptions for religious institutions or individuals from civil rights laws are likely to founder on the conviction that “the search for exemptions is a back-door effort to undermine equality rights generally” (p.28). Stern concludes that only the most insular groups or those strictest in their assertion of religious or ethical norms will be successful in avoiding state coercion. The recognition of same-sex marriage “would represent the triumph of an egalitarian-based ethic over a faith-based one,” and he predicts that advocates of sexual tolerance will not tolerate the “different ethical vision” represented by religion (p.57). [*163]
Although Jonathan Turley does not oppose same-sex marriage, he opposes any effort by the government to use tax exemptions or access to charity funds to discriminate against groups because of their religious views opposed to same-sex marriage. He believes that “the government has abandoned a neutral position in its dealings with political or religious groups in favor of enforcing nondiscrimination policies” (p.60). A strict neutrality principle would focus on the status of organizations as expressive of fundamental commitments concerning faith and/or morals, rather than on the substance of their practices, in awarding tax exemptions or access to charitable funds. Otherwise, denial of these benefits amounts to “a content-based punishment for religious views” (p.61). Free speech, the free exercise of religion, and the right to expressive association central to a pluralistic society must be protected if organizations such as the Boy Scouts are not eventually to be forced to conform to majoritarian views (pp.61, 69, 74-75).
Robin Fretwell Wilson seeks to draw lessons for religious freedom from the healthcare context. Once decisions such as GRISWOLD v. CONNECTICUT and ROE v. WADE transformed “noninterference rights into affirmative entitlements to another’s assistance” (p.79), healthcare conscience clauses were developed to protect both institutions and healthcare providers from being forced to participate in the provision of controversial services such as abortions or emergency contraceptives. Parallels with institutions and individuals who balk at supporting or facilitating same-sex marriage unions are clear. For Wilson, “The operative question is whether . . . a refusal would erect a significant barrier to a couple’s ability to obtain and enjoy all the privileges and benefits of marriage” (pp.98-99). Just as pharmacies in Illinois that do not carry emergency contraceptives must post signs directing patients to other pharmacies that carry them, county clerks’ offices might keep lists of those who are or are not willing to provide marriage licenses or solemnize marriages. This solution is imperfect, Wilson admits: remote locations may have only one clerk, or all clerks in an office may have objections. Refusals to solemnize a marriage here would amount to denial of an entitlement by the state itself, and the state might require a hardship exception to conscientious objection (pp.99-100). Overall, however, Wilson offers possible solutions to some of the conflicts that might arise.
Douglas Kmiec believes that religious organizations would not be constitutionally protected from performing same-sex marriages under the free exercise clause if antidiscrimination laws forbade all nonprofits, religious or not, from discriminating on the basis of sexual orientation. Statutorily, however, he argues that the Religious Freedom Restoration Act “should require the federal government to justify any withdrawal of a federal tax exemption that substantially burdens religious belief or practice” (p.105). Nonprofit institutions serve a public purpose and provide a public benefit. BOB JONES UNIVERSITY v. UNITED STATES is not a precedent for forcing religious organizations to recognize same-sex marriages on pain of losing their tax exemptions, Kmiec argues, because this case recognized “a common law public [*164] policy against racial discrimination in education” (p.110) that does not apply to sexual orientation. More important, “tax exemptions are not subsidies,” but only a recognition that charitable organizations do not collect taxable income. Government should allow tax exemptions to charitable organizations to which it might legitimately deny direct public funding. Although “government may not condition benefits on the relinquishment of constitutional rights” to speech, association, and religion (p.118), “it should not be surprising that the government gets to decide how to spend its own resources” (p.111). As I have argued, faith-based or morals-based organizations possess no constitutional right to direct public funding. If they are to receive it, conditions may be attached (Gill 2004).
Chai Feldblum’s essay is in some ways the most interesting in this collection. On the one hand, she argues that, when the government enacts antidiscrimination laws based on sexual orientation, it is not saying that same-sex relationships are either bad or good. Therefore its stance is one of moral neutrality, despite the implication that these relationships are not so problematic as to justify private discrimination in the public domain. Correspondingly, failure to prohibit discrimination or to allow same-sex marriage is not neutral, because this signals that same-sex relationships are “not morally neutral, but rather may legitimately be viewed by some as morally problematic” (p.132). On the other hand, Feldblum sympathizes with religious individuals who would argue that one cannot separate faith and practice by holding discriminatory views but refraining from acting on them, just as gay persons cannot be expected to separate sexual orientation and sexual activity. To her, it appears “the height of disingenuousness, absurdity, and indeed, disrespect to tell someone it is permissible to ‘be’ gay, but not permissible to engage in gay sex. What do they think being gay means?” (p.143). For this reason, gay people should “recognize the injustice of forcing a person to disaggregate belief or identity from practice” (p.142). Moreover, she would take individuals at their word when they allege that a burden on their belief liberty, which encompasses both religious and other moral beliefs, exists. Nevertheless, she concludes that when identity liberty based on sexual orientation conflicts with belief liberty, in a great majority of cases equality concerning sexual orientation reflects the public good and should therefore win out in these conflicts. Although neutrality is more elusive than she at first suggests, her equation of sexual orientation and religious or ethical belief is provocative.
Charles Reid provides a historical context as background for arguing that separating religious and civil marriage is ultimately unworkable. As a confluence of religious belief, marital union, and state authority, the legal categories of civil marriage “were shaped fundamentally by Christian theological insight” (p.159) and transcend the idea that the continuing consent of parties to a marriage is the ultimate value. Judicial decisions of the nineteenth and early-to-mid-twentieth centuries used religious terminology and “favored the fundamental values of procreation, permanence, and fidelity precisely because of ecclesiastical antecedents” (p.168; see also pp.162, 176). Far from [*165] being created by the state, marriage’s existence predates the state. In Reid’s view, contemporary social crises stem in part from the “effort to reduce marriage from a sacred enterprise, blessed and sanctioned and sustained by communal ritual, into something much more mundane, even banal” (p.179).
Finally, although Douglas Laycock agrees more substantially with Robin Wilson’s measured protections for both religious and sexual freedom than with either Feldblum’s or Reid’s proposed solutions, like Feldblum he perceives similarities in the dilemmas faced by religious and sexual minorities. Both “claim that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct” (p.189). Unfortunately, while religious conservatives point out that sexual liberty is nowhere in the Constitution, gay rights advocates recognize that the free exercise of religion is protected but “construe that protection down to the vanishing point” (p.190). Laycock, unlike Reid, argues that conflict would be reduced if religious and civil marriage were separated in the law. When conservatives argue that marriage is sacred and that same-sex marriage threatens its sanctity, they are using religious terms to defend a civil institution that no longer enforces the sexual morality central to religious understandings of marriage. Ideally, Laycock argues, “marriage” would apply only to religious unions, performed by clergy, while “civil unions,” performed by civil servants, would describe the legal unions contracted by both same-sex and opposite-sex couples. Couples could enter either or both of these statuses. Overall, he concludes, it would be a step forward to disabuse people of the idea that “the ‘sanctity’ of marriage depends on law, not faith” (p.207).
Even if they do not all say so explicitly, the contributors to this book at least imply that both gay rights activists and religious [*166] believers desire not only space for their identities or beliefs, but also the freedom to engage in practices that flow from these identities or beliefs. Contemplating different meanings of neutrality may prove useful in thinking about ways to approach anticipated conflicts. Stephen Monsma distinguishes between two kinds of neutrality. Formal neutrality means that the government should not use religion as a basis for conferring particular benefits or for withholding generally available benefits. Although by prohibiting special liabilities, formal neutrality allows for greater cooperation of government with religion than strict separation does, it can also weaken free exercise protections by prohibiting special benefits or exemptions (Monsma 2002, 265-266). Substantive or positive neutrality, by contrast, requires attention not only to the intentions behind a law or public policy, but also to its consequences. If a generally applicable law “makes it harder for a person of devout faith to follow the tenets of his or her faith, that person’s free exercise of religion has been hindered,” even if no such intent exists (p.266).
Although positive neutrality is supposed to promote the free exercise of religion, the same arguments may be deployed to justify the “free exercise” of one’s sexual orientation, which is a core constituent of personal identity analogous, in my view, to religious belief. Both antidiscrimination laws based on sexual orientation and the recognition of same-sex marriage should then be accommodated under a regime of positive neutrality absent a compelling state interest in refusing to do so. These considerations appear to ratchet up the conflict between religious and sexual freedom. On the other hand, I agree with Laycock that a legal separation between religious and civil marriage is perhaps best calculated to give both sexual orientation and religion their due and to maximize a positive neutrality that might protect both. Whatever a reader’s personal opinion, however, the essays in this book promote thoughtfulness in assessing these competing claims.
Gill, Emily R. 2004. “Religions Organizations, Charitable Choice, and the Limits of Freedom of Conscience.” PERSPECTIVES ON POLITICS 2 (4): 741-755.
Monsma, Stephen V. 2002. “Concluding Observations.” In CHURCH-STATE RELATIONS IN CRISIS: DEBATING NEUTRALITY. Stephen V. Monsma (ed). Lanham, MD: Rowman & Littlefield, 261-271.
BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983).
GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).
ROE v. WADE, 410 U.S. 113 (1973).
© Copyright 2009 by the author, Emily R. Gill.
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