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Review of “Same-Sex Marriage and Religious Liberty: Emerging Conflicts”

same-sex_marriage_and_religious_liberty.jpgEdited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson and published by The Becket Fund and Rowman & Littlefield Publishers in 2008, this book is over 300 pages. Pages xi-xiv+1-207 include the essays by the editors and contributors, pages 209-298 provide notes and are followed an Appendix (pp. 200-310), an Index (pp. 311-326), and “About Contributors.”
The book is so significant I will devote two articles to it. In this, Part I, I summarize the essays, offer personal comments, and identify those papers that demand the closer study, analysis, and critique to be given in Part II.

I will make use of the helpful summaries of the different papers that Picarello gives in his “Introduction” (xi-xiv) but expand them with texts from individual authors and comments.

Marc Stern (“Same-Sex Marriage and the Churches,” 1-57) identifies potential church-state conflicts if same-sex marriage is legalized, including “restrictions on speech against same-sex marriage in public employment and educational contexts, and elsewhere in the public square, the withholding of licenses and accreditations from professionals and institutions that oppose same-sex marriage, and civil rights laws that prohibit discrimination in employment, housing, public accommodations, and education” (Picarello, p. xii). Stern reviews 5 potential-problem areas: I. The freedom to preach in the church, public schools, elsewhere in the public square (pp. 2-19); II. Licensing and registration of entities opposed to same-sex marriage (pp.19-24); III. Eligibility for and conditions attached to government funding of institutions so opposed (pp. 24-25); IV. Expansion of existing civil rights laws regarding employment, housing, access to public property, etc. (pp. 25-56); and V. Whether the Religious Freedom Restoration Act or Free Exercise Clause of the First Amendment will insulate individuals objecting to application of civil rights laws in ways that burden religious exercise (p. 56). In conclusion he notes that the conflicts he explored “unfolded in a world without same-sex marriage,” and adds “its legalization would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The question is whether champions of tolerance are prepared to tolerate proponents of a different ethical vision. I think the answer will be no” (pp. 56-57). Stern’s paper is very valuable. He clearly worries that legalizing same-sex marriage will severely restrict the free exercise of religion, and rightly so.

Jonathan Turley (“An Unholy Union: Same-Sex Marriage and Use of Governmental Programs to Penalize Religious Groups with Unpopular Practices,” pp. 59-76) focuses on government denial of tax exemption to religious organizations and barring unpopular groups from publicly funded charity sites. He argues that the Supreme Court, whose reasoning up to now is muddled, should “resolve ambiguities arising from legalizing same-sex marriage strongly in favor of the freedoms of expressive association and religious exercise, in part to assure a genuine diversity in civil society of competing views on controverted questions” (Picarello, p. xii). Turley, a strong supporter of gay rights and same-sex marriage, nonetheless believes “strongly that the government should not use tax policy or charity funds to discriminate against groups on the basis of their religious views or practices” (p. 60). He thinks that cultural changes caused by same-sex marriage “will depend on greater, not lesser, protection of speech and association on both sides of the same-sex marriage debate” (p.76). He does not consider the more serious threats to religious liberty identified by Stern that legalizing same-sex marriage poses.

Robin Fretwell Wilson (“Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context,” pp. 77-102) “draws on an analogous experience from the healthcare context…to predict the kinds of religious liberty conflicts that will arise out of same-sex marriage…and to offer some constructive potential solutions to those conflicts.” Focusing on limits to conscience in healthcare sparked by refusals to dispense emergency contraceptives, Wilson thinks that history “suggests that proponents of same-sex marriage may seek to harness the power of state and federal governments to withhold funding streams and tax exemptions….[and thus] transform a negative right to be free from government interference in the controverted activity…into a positive right to support for that activity. That history also suggests that ‘conscience clauses’ and other legislative and regulatory exemptions can go a long way toward reducing the number and severity of conflicts between same-sex marriage and religious liberty” (Picarello, pp. xii-xiii). Wilson admits that legalizing same-sex marriage leaves policy makers “with the…thorny task of weighing two sets of interests: the dignitary interests of same-sex couples and the moral and religious convictions of potential objectors.” After suggesting compromising policies not likely to be accepted by either side, she notes that States could take (a) a win-lose approach elevating the interests of one or the other side or (b) a do nothing policy. Deeming (b) the worst option, she indicates that if the action taken against Catholic Charities in Massachusetts after mandating adoption for gay couples is any indication, “policy makers will opt for a winning solution for same-sex couples and a losing one for those who oppose such unions on moral and religious grounds” (pp. 101-102). This important paper verifies Stern’s fears, suggests some constructive ways to protect religious liberty, and merits further study.

Douglas Kmiec (“Same-Sex Marriage and the Coming Antidiscrimination Campaigns Against Religion, 103-121) identifies “some considerations that could conceivably enable religious institutions to prevail in those conflicts, whether politically or judicially,” but admits the job will be difficult. If “jurisdictions begin to follow the California Supreme Court’s finding that sexual orientation is a highly protected classification, Kmiec predicts that state-level tax exemptions will be particularly vulnerable to attack” (Picarello, p. xiii). Kmiec’s contribution is very narrow in scope: exemption from tax exemption for churches opposing same-sex marriage. He stresses that any right to same-sex marriage assumes one answer to a disputed question, namely that same-sex marriage is equivalent to traditional marriage (pp. 103-121). I think there is growing evidence that soon this equivalence will be legally mandated. His paper, like Turley’s, is narrow in scope and does not address several major possible conflicts identified by Stern.

Chai R. Feldblum (“Moral Conflict and Conflicting Liberties,” 123-156) focuses on the kind of constitutional analysis that should be used in adjudicating potential conflicts. Although liberty interests on both sides of the debate are genuine, she holds that “one of the interests must ultimately prevail at the expense of the other.” A supporter of sexual liberty and same-sex marriage, she argues that on her preferred analysis “claims of freedom to observe religious beliefs should not be treated any differently than those based on analogous secular beliefs and should rarely, if ever, prevail over claims of sexual liberty” (Picarello, pp. xiii-xiv). Her contention that the liberty to practice religious and secular identity beliefs must yield to protecting the liberty of lesbian, gay, bisexual, and transsexual persons (LGBT) needs to be challenged. She clearly thinks that the liberty of churches and church members publicly to express opposition to same-sex unions must be denied (pp. 123-156). Her paper requires further study and critique.

Charles J. Reid, Jr. (“Marriage: Its Relationship to Religion, Law, and the State,” 157-188) “critically examines a proposed solution to some of these conflicts, which is to disjoin legal and religious marriage….The history [of the institution of marriage in Amglo-American culture] suggests that any attempt at separating them completely would create an extreme discontinuity… Reid argues that…disjoining legal and religious marriage appears undesirable and unworkable, if not simply incoherent” (Picarello, p. xiv). Reid’s important essay “serves two essential purposes. First it provides a historical context to contemporary debates decoupling the legal regulation of marriage from its roots in a Christian order….Second [it] seeks to demonstrate the ultimate unworkability of a radical separation of religion and law on the subject of marriage” (157). Reid shows that from the 12th century on marriage was defined in Anglo-American culture in legal categories shaped by Christian theological insight. His review of the Christian sources of American law on marriage reveals a consistency from the 12 century to the last 2 or 3 decades of the twentieth (150-176). His conclusion is that the separation of marriage from religion is far more difficult than might appear. He argues that “all marriage has a religious dimension that is probably unavoidable” and is recognized in some way in practically all societies throughout the world. “Marriage is a commitment that embraces not only the good of the parties but points to…society’s sense of the ultimate” and law itself has both an educational and religious dimension (p. 187). His essay is another meriting closer examination and analysis.
Laycock’s “Afterword” (pp. 188-207) divides “the conflicts between religious and sexual liberty into the avoidable…and the unavoidable. He evaluates the contrasting approaches for resolving these conflicts offered by Feldblum (sexual liberty almost always prevails) and Wilson (religious liberty prevails if the same-sex couple can obtain services elsewhere), ultimately aligning with Wilson. He also critiques Reid’s opposition to the separation of legal and religious marriage….and concludes that the separation is not only possible but desirable” (Picarello, p. xiv). I found his critique of Reid challenging, especially his statement, “The state has no business imposing a single answer to that question [the nature of marriage]” (p. 207). His essay demands further study.

Part II will thus further study the contributions by Wilson, Feldblum, Reid, and Laycock.
William E. May
Emeritus Michael J. McGivney Professor of Moral Theology, Pontifical John Paul II Institute for Studies on Marriage and Family at The Catholic University of America
Senior Fellow, Culture of Life Foundation