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

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william_e_may.jpgHere I examine Charles J. Reid, Jr’s “Marriage: Its Relationship to Religion, Law, and the State,” Douglas Laycock’s “Afterword,” and offer final comments.

I summarized pp. 157-176 of Reid’s chapter in Part I of this review; in them he showed that traditionally in Western civilization and particularly in Anglo-American history marriage was regarded as “a divine institution.” Here I focus on the section “Marriage and the State” (176-187) and on his “Conclusion” (187-188).

In “Marriage and the State” Reid argues (1) that marriage is inherently religious, (2) that law teaches values, and (3) that law has a religious dimension.  Regarding (1) he reviews the work of the agnostic anthropologist Bronislaw Malinowski whose studies clearly demonstrated the centrality of religious belief for human society and its transcendent significance. According to Malinowski “marriage in all human societies is regarded as a sacrament” in the sense that all human societies have attached symbolic significance to the act of joining persons in marriage. He warned against the danger inherent in completely secularizing marriage, a trend he noted in the early 1950s and seemingly coming to pass today (176-179).

With respect to (2) Reid calls attention to Mary Ann Glendon’s book on Rights Talk in which she severely criticizes those lawyers and jurists who have miseducated the American people by failing to inform them of law’s intrinsic duty to teach values and uphold those moral norms whose observance is necessary for protecting the common good. Her methodology, applied to marriage, shows us “the primacy of marriage in the ordering of society. Marriage was so important that it was consistently explained and justified by reference to the ultimate and the divine….part of the divine plan for the world…supremely important to social well being” (180-181).  Marriage was never regarded as a creation of the state because its existence predated the state and was “something that state authorities were charged with conserving” (182). This is in stark contrast to the claim Massachusetts’ legislators made when they sanctioned same-sex marriage by asserting that the state “creates” marriage.(182-183).

To support (3) Reid cites the work of legal scholars Harold Berman and John Noonan. Berman noted that “religion is not only a set of doctrines and exercises; it is people manifesting a collective concern for the ultimate meaning and purpose of life…a shared intuition of and commitment to transcendent values” (183). If viewed in purely secular terms, as a utilitarian or instrumentalist product, law fails to conform to human nature and gains its force only through the threat and use of coercive force, not by virtue of its intrinsic truth and reasonableness. Reid thinks this view of law “will ultimately prove unworkable because so conceived law does not command respect and allegiance” (184-185). He believes that the “not-so-hidden danger in these claims [justifying same-sex marriage] is precisely…the replacement of norms that reflect deeply held convictions of right and wrong with a series of second-order instrumentalist claims” (186). Moreover, as John Noonan emphasized, a believer who relies on religious belief to reach a particular public policy position “does nothing different from any conscientious citizen or politician who consults the source of truth he holds in highest regard” (186).

Reid concludes that all marriage has a religious dimension that is probably unavoidable; moreover, the truths or lessons that law teaches and that lawgivers seek to inculcate must, if they are to be respected, appeal to a substantive vision of the good, a transcendent understanding of right and wrong (187-188). From this it follows that separating legal marriage from religious marriage is undesirable and unworkable if not utterly incoherent. I think that from this it also follows that it is a tragic error to sanction same-sex unions as marriage.

In his Afterword, 189-207,Douglas Laycock (with Anthony Picarello an editor of the volume) stresses that the six contributors to the volume (Stern, Turley, Kniec, Wilson, Feldblum, Reid), although on different sides of the debate, agree that same-sex marriage threatens religious liberty. By doing so they are, he thinks, both wrong because both religious minorities (who oppose same-sex marriage) and sexual minorities (who clamor for it) “need space in order to live their own lives according to their own beliefs, values, and identity.” His major claim is that they can. A model for letting them do so is the Equal Access Act that guarantees the right of student clubs such as gay rights clubs and evangelical religious clubs to meet in the country’s secondary schools (189). Laycock thinks we should enact gay rights laws and religious exemptions so that champions of religious liberty can continue to express their disapproval of and opposition to such laws but nonetheless cannot stop gay activists from exercising their right to marry (190).

He distinguishes between “avoidable conflict” (192-194) and “unavoidable conflict’ (193-197). He is convinced that “in principle we can create private spaces in which each side can live its own values. Such a commitment to live and let live is the essence of civil liberty” (192). He thinks that if same-sex marriage were legalized and if each side would refrain from seeking to prevent the other from all forms of opposition then “large bodies of litigation would disappear” and major conflicts would be avoidable (194).

There will inevitably be conflicts in issuing licenses, conducting weddings, which involve printers, caterers, photographers, lodging for honeymoons, etc. Same-sex couples will meet reluctance or refusal to serve their needs from small businesses, individual officials, and others. Then “either the same-sex couple must find another merchant or another landlord or the traditionally religious merchant or landlord must violate deeply felt moral obligations. These conflicts are thus unavoidable” (196). But Laycock thinks them “manageable.” He firmly insists that same-sex unions be legally recognized, and he advises their religious opponents to enlist the help of “liberal” religionists who support gay rights in order to preserve peace on the larger issues and work out compromises where possible on the those that are unavoidable (197). Advice they will hardly take!

In attempting to “balance interests” (197-201) Laycock basically follows Wilson’s solution  (see Part II of this review). In communities where many merchants refuse to serve same-sex couples a public notice requirement is necessary to avoid the burden imposed on such couples in searching for a merchant who will serve them. But even with such notice, if the burden becomes severe, merchants should be compelled to serve despite their convictions. Their “right to moral integrity is outweighed by the same-sex couple’s right to live in the community with their moral commitments” (199).

Churches have no reason to worry. Let them marry only according to their own understanding of marriage (Catholic, Baptist, etc.). But individuals who refuse cooperation with same-sex couples because it violates their conscience can do so only when refusal doesn’t matter because someone else will perform the desired service. Religious dissenters can live their own values, they have no right to prevent same-sex couples from living theirs (200).

Laycock rejects Reid’s view. He insists that we separate “civil”–or better “legal”–marriage and “religious” marriage and that doing so will allow members of both sides to live and let live. In fact, he thinks we should drop the term “marriage” when referring to legal unions (such as those of same-sex couples) and call them “civil unions” (203). For him the state creates marriage and makes it mean what it means.

Comments on Laycock
It is highly ironic, and will not, I think, please ardent advocates of same-sex marriage, that Laycock prefers to call them “unions” and not “marriages.” He assumes and never shows why society must legally recognize such “unions” or “marriages.” But he argues that if they are recognized legally as they should be individuals who repudiate them because they  violate their consciences ought under certain conditions to be compelled  to “serve” the needs of same-sex couples. Good-by to the First Amendment rights of these persons! He notes that in the past and at present civil laws have declared marriages of heterosexual couples null if they have never been consummated (202). but says nothing regarding the “consummation” of same-sex unions. The reason is that there is no specific act by which they could do so (on this see, e.g., John Finnis, “Law, Morality, and ‘Sexual Orientation,’” Notre Dame Law Review 69 [1997] 97-134; Patrick Lee and Robert P. George. “What Sex Can Be: Self-Alienation, Illusion, or One-Flesh Union,” American Journal of Jurisprudence 42 [1997] 135-158). Laycock in no way answers the arguments Reid marshaled to show the religious significance of marriage and its relationship to the law. He simply dismisses this view. Perhaps today, however, when many people think that consent to marry is consent to live as a married couple so long as each is satisfied in doing so but not when one or the other is no longer satisfied, Laycock is on to something. The Catholic Church does not and cannot regard as valid “marriages” based on that kind of commitment no more than it does or can regard same-sex unions as “marriages.”

Final Comments
Of the six contributors to this volume 3—Turley, Wilson, and Feldblum—and editor Laycock are ardent champions of same-sex marriage and in certain circumstances want to deny or curtail the liberty of individuals (and for some, even that of religious organizations) to refuse to participate in or facilitate such unions. Two contributors—Stern and Reid–are clearly opposed both to legalizing same-sex unions and to depriving persons or religious entities of First Amendment rights for opposing such unions. Kniec seems ambiguous on this matter but emphasizes that whether same-sex persons can marry is a disputed question.

One of the most glaring failures of same-sex marriage enthusiasts is their refusal to recognize the absolutely indispensable contribution heterosexual couples make to the common good, especially if in getting married they consent to a life-long union for better or worse, etc. until death should them part. They do so because our society or any society cannot long endure unless a new generation succeeds the old and is prepared to care for those who have given them life. And this generation comes into being by being “begotten” in a bodily act open both to the gift of human life and to the deepening of a unique kind of love, marital love.


(c) Culture of Life Foundation, 2008.  Permission granted, attribution required.