The Future of Religious Liberty. By Ben Domenech. Real Clear Religion, June 26, 2013.
Religious Liberty and the Gay Marriage Endgame. By Ross Douthat. New York Times, June 26, 2013.
Frightening the Horses. By Rod Dreher. The American Conservative, June 26, 2013.
Scalia’s Blistering Dissent on DOMA. By Tim Grieve. The Atlantic, June 26, 2013.
The Left’s Assault on Religion. By Rush Limbaugh. RushLimbaugh.com, June 28, 2013.
Three Spiritual Journeys of Millennials. Barna Group, May 9, 2013.
The City. Summer 2013. issuu.com.
What is Marriage? By Sherif Girgis, Robert P. George, and Ryan T. Anderson. Harvard Journal of Law and Public Policy, Vol. 34, No. 1 (Winter 2011).
week should bring two significant Supreme Court decisions on the matter of same
sex marriage, in the cases of Hollingsworth
v. Perry (the California Proposition 8 case) and the United States v. Windsor (the DOMA issue). It would be a shame for
the Court to hand down any sweeping ruling on the issues involved. Just like it
did in Roe and Doe, the Court could stop the conversation, halting the ability
of voices to be heard and for this to play out in a representative political
politics ought to represent, and the people and their representatives should
decide what marriage is, and whether they wish to change their minds on it, not
Summer 2013 issue of The City, which
mails this week, is full of smart writing on the issue of marriage and
religious liberty. In editing the issue, I read a great deal of the work from
Robbie George, Ryan T. Anderson, and others who have been making essentially
the natural law argument in defense of the traditional definition of marriage.
The core of their argument is here. Upon closer inspection, I think they have
really been arguing against the rise of something which has a much larger
impact than just a small number of homosexuals getting married – they have
instead been arguing against the modern concept of sexual identity. And this is
a much tougher task, considering how ingrained this concept has become in our
the sexual revolution, we crossed a line from sex being something you do to
defining who you are. When it enters into that territory, we move beyond the
possibility of having a society in which sex acts were tolerated, in the Mrs.
Patrick Campbell sense – “I don’t care what they do, so long as they don’t do
it in the street and frighten the horses” – and one where it is insufficient to
be anything but a cheerleader for sexual persuasion of all manner and type,
because to be any less so is to hate the person themselves. Sex stopped being
an aspect of a person, and became their lodestar – in much the same way
religion is for others. As Walker Percy wrote, “Pascal told only half the
story. He said man was a thinking reed. What man is, is a thinking reed and a
problem with gay marriage is not about gay people getting married – they’ve
already been doing that, or living that way. The problem with gay marriage is
not that it will redefine marriage into a less valuable social institution in
the eyes of the populace – that is already happening, has been for decades, and
will continue regardless of whether gays are added to it or not. And the
problem with gay marriage is not about the slippery slope of what comes next –
though yes, the legal battle over polyamory and polygamy is inevitably coming,
as the principle of marriage equality demands it does (these relationships
already exist below the radar, albeit with more poly than amory involved – of
the 500 gay couples followed in the respected San Francisco study, about half
of the partners have sex with someone else with their partner knowing).
real problem with gay marriage is that the nature of the marriage union is
inherently entwined in the future of the first line of the Bill of Rights: our
right to religious liberty. Orthodox believers of Christian, Muslim, and Jewish
faiths were slow to understand this. I’m talking about something much bigger
here than the discrimination lawsuits brought across the country against bakers
and photographers: I’m talking about whether churches will be able to function
as public entities in an era where their views on sin, particularly sexual sin,
are in direct conflict with not just opinion but the law – and proselytizing
those views from the pulpit or in the public square will be viewed as using the
protection of religious expression to protect hateful speech.
this problem already in Illinois’s marriage law, where churches which do not
allow same sex unions would essentially have to close their doors to full
participation in civil society. We see it as a constant issue regarding
Canada's hate speech laws, where courts must discern whether quoting Bible
verses amounts to “harming the public discourse.” We will see it more here.
That obvious oncoming clash strikes me as the most troublesome aspect of this,
and the one that has received the least attention in the rush to legalize. The
argument has been more about benefits and social outcomes and “won’t somebody
think of the children,” ignoring the core problem, which raises challenges to
the freedom of speech and expression the likes of which led to the pilgrims
crossing the sea in the first place.
conflict between sexual liberty and religious liberty is unlikely to be one the
religious will win, in large part because of the broad and increasing
acceptance of an idea President Obama has espoused more than once in public:
that the religious have a freedom to worship, and that’s where it ends. When
you leave the pew, you must leave your faith there. Among the religious, this
is absurd – their entire lives are defined by their faith, in ways large and
small. For both Christianity and Islam, the core of their faith is built on a
call to take the message to the world, spreading it through public witness and
preaching. Yet this belief in the limited freedom to worship is what led Obama’s
administration to argue that faith-based hiring and firing is a discriminatory
act for religious entities. It will lead to similar cases in the years to come
regarding the marriage issue, but not just focused in that space – expect it to
factor in divorce proceedings, custody battles, and more points involving the
nice folks from Child Protective Services. Expect it also to factor in
dramatically expanding the scope of these discrimination lawsuits – think on
the doctor in California who was brought up on discrimination charges for
referring a lesbian couple to a colleague for artificial insemination.
litigious society, those conscience conflicts will multiply, with pressure on
anyone who “refuses and refers” to be stripped of their government-provided
license or memberships in professional society. This will occur in part because
the gay and lesbian population is distinctly different in comparison to the
rest of the public when it comes to religion. Half of the LGBT population is
atheist, agnostic, or religiously unaffiliated – and this makes them far less
likely to respect the religious defenses of those they view as preaching and
practicing bigotry, and recruiting people to join their bigoted club.
religious liberty, there really is no such thing as free speech. When
government can pick and choose which form of expression is religiously
defensible and which is unjustified hate, it fundamentally alters the
relationship between state and citizen. If a different path toward gay marriage
had been followed – the compromise of a simple civil union approach to ensure
access to rights and benefits – it’s possible this clash could've been avoided.
A federalist solution to marriage could’ve slowed the approach to the issue to
a point where the concerns of the faithful could achieve proper protection. But
those for whom sexual identity is paramount have insisted on redefining
institutions, through a series of repeated flashpoints – from the Boy Scouts to
the Catholic hospitals and adoption centers – disregarding any of the outcomes.
The calculation is simple: ensuring the supremacy of their worldview is the
goal, and those who disrespect it (for religious reasons or not) deserve to be
shunned, regardless of the fallout for civil society. And there will be
real issue here is not about gay marriage at all, but the sexual revolution’s
consequences, witnessed in the shift toward prioritization of sexual identity,
and the concurrent rise of the nones and the decline of the traditional family.
The real reason Obama’s freedom to worship limitation can take hold is that we
are now a country where the average person prioritizes sex far more than
religion. One of the underestimated aspects of the one out of five Americans
(and one out of three Millennials) who are now thoroughly religiously
unaffiliated is that, according to Barna’s research, they aren’t actually
seekers. They’re not looking or thinking about being part of a community
focused on spirituality, in prayer, fellowship, worship, or anything else.
Their exposure to faith is diminished because they want it to be.
nation where fewer people truly practice religion, fewer people external to
those communities will see any practical reason to protect the liberty of those
who do. The world could in time come full circle to Mrs. Campbell’s old line:
You are free to believe, as long as you don’t do it in the streets, so as not
to frighten the horses.
something dramatic changes in the drift of public opinion, the future of
religious liberty on these issues is going to depend in part on the magnanimity
of gay marriage supporters — the extent to which they are content with
political, legal and cultural victories that leave the traditional view of
marriage as a minority perspective with some modest purchase in civil society,
versus the extent to which they decide to use every possible lever to make
traditionalism as radioactive in the America of 2025 as white supremacism or
anti-Semitism are today. And I can imagine a scenario in which a more drawn-out
and federalist march to “marriage equality in 50 states,” with a large number
of (mostly southern) states hewing to the older definition for much longer than
the five years that gay marriage advocates currently anticipate, ends up
encouraging a more scorched-earth approach to this battle, with less tolerance
for the shrinking population of holdouts, and a more punitive, “they’re getting
what they deserve” attitude toward traditionalist religious bodies in
particular. If religious conservatives are, in effect, negotiating the terms of
their surrender, it’s at least possible that those negotiations would go better
if they were conducted right now, in the wake of a Roe v. Wade-style Supreme
Court ruling, rather than in a future where the bloc of Americans opposed to
gay marriage has shrunk from the current 44 percent to 30 percent or 25
percent, and the incentives for liberals to be magnanimous in victory have
shrunk apace as well.