Monday, February 21, 2011

Same-Sex Marriage vs. Religious Freedom

It now appears that the Maryland legislature is likely, in coming weeks, to legalize same-sex marriage in the state. Coming from a notoriously liberal state that just elected Barbara Mikulski to her fifth term in the Senate, this will not surprise anybody. Still, it might constitute a milestone for the gay marriage movement because Maryland was the first state in the US to ban same-sex marriage by law. Under the Family Law Act of 1973, "only a marriage between a man and a woman is valid in this State." Before that, marriage in the US was regulated by common law, not by statute. By 1994, in the face of increasing activism by same-sex couples seeking marriage, 45 states had passed marriage laws that defined marriage as being between a man and a woman. In 1996, President Clinton signed the Defense of Marriage Act, which prohibited the federal government from recognising same-sex marriages or any other kind of same-sex union. This turned out to be the high-water mark for the effort to prevent same-sex marriage.

The following year, the Supreme Court of Hawaii became the first to find prohibition of same-sex marriage unconstitutional. Hawaiians responded by voting, by a margin of 69% to 31%, to amend the state constitution to relieve the state courts of jurisdiction over marriage. In late 1999, Vermont's Supreme Court issued a similar ruling, and in 2000 the Vermont legislature acquiesced by recognizing same-sex civil unions. This established the pattern that has been followed for the past decade: activist courts imposed legal recognition of same-sex relationships contrary to the will of democratic majorities, who sometimes succeeded in reversing the courts' radical reinterpretations of marriage and sometimes failed.

The reasoning of same-sex marriage proponents is invariably based on an absolutist form of individualism, which recognizes no criterion of justice besides the equal treatment of all competent adults. Other criteria, such as the impact on families and children, public morals, social stability, and religious freedom, are ignored or dismissed. Some courts have gone so far as to state that hatred of homosexuals is the only possible reason why anyone would want to differentiate between same-sex and opposite-sex couples. Thus, they wield their liberal prejudices as a preemptive ad hominem attack to dismiss all opposing arguments before they are even enunciated.

Wherever same-sex marriage is enacted, conflicts with religious liberty inevitably emerge. In Canada, Catholic clergy have faced hate-crime investigations by human rights commissions for simply reiterating Catholic teaching on homosexuality. In Massachusetts, Catholic Charities was forced out of the adoption business because it could not agree to place children with same-sex couples. In California, doctors may not refuse to artificially inseminate lesbians on religious grounds. And in a number of cases in both Canada and the US, photographers have been fined for discrimination after they declined to photograph gay weddings. The most extreme views have been put forth by EEOC Commissioner Chai Feldblum, who states, "There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that's the only way that the dignity of gay people can be affirmed in any realistic manner."

Feldblum is unusual only in her candor. The primary agenda of the ACLU for the past two decades has had a similar point: to transpose the traditional places of sex and religion in our culture. Where religion was once expected to be a person's primary public affiliation, source of identity, and basis of social behavior, sexual expression was expected to be conducted discreetly in private between two consenting adults. A presumption of privacy in matters related to sex and reproduction was the basis of the Supreme Court's 1973 decision in Roe v. Wade. But liberal activists now despise privacy in sexual matters, holding that insistence on privacy facilitates shame and demeans sexual identity. Rather, sexual identity is to be proclaimed, celebrated, and lived publicly. Where the sexual innocence of children was once protected by social consensus, now their sex education might begin before they learn the multiplication tables. In short, sex is being pushed out of the closet.

Meanwhile, secularists are trying to shove religion into the closet. They portray even the mildest public display of religion as inherently offensive to anyone not of that religion. They increasingly substitute "freedom of worship" for "freedom of religion" in an effort to redefine religious liberty as nothing more than the freedom to do whatever you want in the privacy of your own church, synagogue, temple, or mosque. Many educators now take it as part of their job to counteract the religious upbringing of their pupils. Some would even prohibit all religious indoctrination of children, calling it a form of child abuse. In short, secularists are working to reduce religion to a private recreational activity that consenting adults may engage in discreetly behind closed doors.

The American public has little patience for this sort of anti-religious activism. But same-sex marriage and the cluster of gay rights that always accompany it into law have become a way for activist courts to circumvent American religious sensibilities. Can there be any doubt that secularists will continue to use same-sex marriage laws as a bludgeon against religious liberty?

According to The Washington Post, my own state senator, Jim Rosapepe, endorsed Maryland's same-sex marriage bill only after the "conscience clause" was strengthened, which would make it clear that religious organizations do not have to participate in ceremonies that violate their beliefs. But I'm not sure why we should trust courts that have overturned previous marriage laws to respect a conscience clause whose effect is to permit discrimination against same-sex couples. In any case, the conscience clause appears to cover only religious organizations, not religious individuals like wedding photographers or fertility doctors. I can't help feeling that the Maryland I will return to in a few months will be less free than the one I left two years ago.

15 comments:

James the Thickheaded said...

Great post.
I tend to think that with a gov'nr schooled by Mikulski's machine in his formative years, the result is a foregone conclusion. I wonder though that the place to turn is less one of fighting in detail than in turning the terms of debate in grand strategy. This is to say that when you study the civil rights movement, folks involved exercised a grand and patient strategy. By contrast, christian responses have been to try to win every battle and have increasingly lost the war(s). This too will be lost and much more if a different longer-term response is not put in place.

I wonder that what has to happen to change the debate is clearly more broadly based. The challenge to christianity is less and less setting out morality than in actually living the gospel in full as a persecuted church. We will have to be willing to give up our tax status, give up a whole lot more and stand completely free of government interference as the last bastion of resistance to the state leviathan. Perhaps what this animosity is going to ultimately do is to restore the church from something we take casually. Now that's something to think about.

Mari said...

What you're coming back to Maryland? Looking forward to it!

Roland said...

Columnist Robert Knight reports that just a few days ago, the ACLU filed a brief whose gist is that "anyone with traditional views of sex and marriage should be barred from state university counseling programs unless they agree to violate their beliefs." Ironically, the brief cited a decision Associate Justice Ruth Bader Ginsburg, who wrote: “Condemnation of same-sex intimacy is, in fact, a condemnation of gay people,” and “our decisions have declined to distinguish between status and conduct in this context.” Yet Ginsburg and the ACLU think it is okay to tell Christians to separate their religious status from their conduct. Once again, the implicit assumption is that sexual identity trumps religious identity - and the federal courts seem to be buying the argument.

Trevor-Peter said...

The amendments to protect individuals and businesses didn't pass, but the protection of religious organizations came out of the debate significantly improved. As you say, it may be struck down judicially anyway (or just ignored by executives who declare laws unconstitutional, as Obama has done), but there's also talk of a referendum. Guess we'll see.

Roland said...

For now, marriage is safe in Maryland. House leaders, finding they were a vote or two short of the necessary majority, sent the bill back to committee, effectively killing it. Freshman members wanted to "consult" with their constituents - i.e., more accurately gauge the political winds - before committing themselves. And African-American legislators were finding religious opposition in their districts.

Roland said...

The Telegraph reports that last month a British court said there is no place in British law for Christian beliefs. The court upheld the barring of a Christian couple from serving as foster parents because of their view that homosexuality is wrong.

Roland said...

An interesting view from Australia: "Marriage Equality: Let’s Go For the Whole Hog".

Anonymous said...

Why is it that transvestites can get married but not two males?

Roland said...

Two males can get married - if they can find two females willing to marry them!

Anonymous said...

http://en.wikipedia.org/wiki/Biology_and_sexual_orientation#Biological_differences_in_gay_men_and_lesbians
Do you believe that sexual orientation is a choice?

Arimathean said...

For the most part, if choice plays any role in sexual orientation, I think it is a most often a small one. But I don't think we should make blanket statements about sexual orientation. I mean, given the current state of research on this complex subject, it's not as if we really know what we're talking about.

Arimathean said...

An interesting post by Stacy at The Orthodork Cafe: "Culture and Sacrament".

TheCuriosity said...

Your Canadian example is false as it has nothing to do with gay marriage and everything to do with Canada's hate speech laws. Even before gay marriage was legal, hate speech was not.

Arimathean said...

My Canadian example has everything to do with the conflict between religious liberty and sexual liberty.

Hate speech laws are an abomination. Their application always entails the establishment of favored categories of victims and favored kinds of speech. Hate speech laws reduce freedom of expression from a common right of all citizens to a privilege granted by the political class to people they like who say things they like. Hate speech against Christians, for example, is never prosecuted because Christians are not a class favored by the leftists who invent and enforce hate speech laws.

If it can be considered hate speech simply to reiterate the Church's age-old teaching that homosexual attraction is disordered, what is next? If a scientist publishes a journal article presenting strong evidence that same-sex attraction is not immutable, would that constitute hate speech just because it upsets the gay lobby? Perhaps the Canadian constitution permits this kind of tyranny, but the US Constitution does not.

Arimathean said...

An interesting article by Bradley Miller on the Canadian experience: "Same-Sex Marriage Ten Years On: Lessons from Canada"