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Is Teaching And Preaching Against Same-Sex Marriage “Hate Speech?”

The conjugal view of marriage as between one man and one woman has increasingly been characterized by same-sex proponents as based on bigotry and prejudice, and contrary to human rights.  Organizations that advocate for re-defining marriage refer to the conjugal view as “discriminatory [1]” and a violation of civil rights.  Some judges are also branding the conjugal view in a similar fashion.  For example, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit wrote that same-sex marriage bans are based on “hate” and “savage discrimination” in his court decision this past September, which overturned Indiana and Wisconsin’s same-sex marriage bans.  If defending the conjugal view of marriage is regarded by some as hateful and discriminatory, is teaching and preaching against same-sex marriage “hate speech” as the law defines it?  Are organizations and businesses that conscientiously refuse to provide professional wedding and family services to same-sex couples subject to civil liability under anti-discrimination laws?

The constitutional guarantees of freedom of speech and freedom of religion under the First Amendment provide strong protections against censorship and burdening the free exercise of religion.  Under current American law, teaching and preaching against homosexual marriage and homosexual acts is not hate speech.  The U.S. Supreme Court has defined illegal hate speech as speech that which will or is likely to incite immediate violence or bodily harm, and which carries no other meaning or purpose other than to express hatred for a certain group[i] [2].  Teaching or preaching in support of the conjugal view of marriage or about the immorality of homosexual acts is ordered towards educating audiences about the truth of the nature of marriage and human sexuality, and about the inherent good of conjugal marriage.  Inciting violence and expressing hatred plays no part in such dialogue.

However, while speaking against same-sex marriage is not currently punishable as illegal hate speech, that does not mean that those doing so face no consequences.  Religious and other institutions teaching against same-sex marriage, and organizations taking a stance against it during the course of business are already being indirectly punished under anti-discrimination laws and through targeted exclusion from government programs.

Civil Liability Under Anti-Discrimination Laws

Research by The Becket Fund for Religious Liberty has identified at least 350 state anti-discrimination laws [3] that would be triggered if marriage is re-defined.  When same-sex marriage is legalized in a state, existing anti-discrimination laws in that state would be extended to apply to homosexuals.

When Massachusetts legalized gay marriage, its anti-discrimination law was automatically expanded to include same-sex couples.  As a result, Catholic Charities of Boston’s adoption program [4] was required to place children with same-sex couples in order to maintain its adoption agency license.  Faced with the choice of either violating the law or its religious principles, sadly, Catholic Charities felt forced to shut down the long-established adoption agency.

Religious institutions are not the only ones affected.  As Sherif Gergis, Ryan T. Anderson and Robert P. George wrote in their recent book, “What is Marriage? Man and Woman: A Defense”, conscientious individuals “will be forced to comply with the revisionist view or lose their jobs.”  That, too, is already happening.  For example, last week, Prof. John McAdams, a tenured professor at Marquette University, was relieved of his teaching duties after writing a blog post defending a Marquette student who was silenced by a teaching assistant in the classroom because he wanted to discuss the ethics of gay marriage.  “You don’t have a right in this class to make homophobic comments in this class,” the teacher stated [5], because any opinion against gay marriage is “not appropriate” and “harmful.”

Although clergy are exempted from being forced to celebrate same-sex weddings, lay people whose jobs involve other aspects of weddings, marriage and family social services are not afforded the same protections.  Recently, a Colorado bakery that declined to make a wedding cake for a same-sex marriage was ordered to “cease and desist from discriminating” against same-sex couples or else face financial penalties.  A florist in Washington state is in danger of losing her business and personal assets in a lawsuit because she declined to provide flowers for a same-sex marriage and instead referred the couple to a nearby florist.

Targeted Exclusion From Government Benefits

Exclusion from government programs and denial of access to government funding and benefits is another way that religious and other organizations that conscientiously oppose same-sex marriage can be attacked.  This past January, after years of being denied access to public after-school facilities, city campgrounds, and the right to participate in state charitable fundraising programs, the Boy Scouts of America changed its membership standards to allow openly-gay members.  The government’s targeted denial of benefits was resulting in mounting financial losses and was making it difficult for the Scouts to operate at all.

Some legal scholars[ii] [6] have warned that Catholic and other non-profit and religious institutions that teach against, publicly oppose, or operate in a manner that refuses to validate homosexual behavior and same-sex marriage could possibly be in danger of being stripped of their tax-exempt status if marriage is re-defined and same-sex marriage is legalized.  Fundamentally, tax exemption is granted for those agencies and actions deemed to be “for the public good” and in the public interest.  If an organization opposing same-sex marriage is deemed to operate contrary to public policy, it might well not qualify to be a tax-exempt, non-profit organization.

In short, although teaching and preaching against homosexual behavior and same-sex marriage is currently not outlawed as hate speech, operating a business and taking a public stance against it is already being indirectly punished and burdened through anti-discrimination laws and denial of access to government benefits.  Unless greater efforts are made to defend the First Amendment rights of religious liberty and freedom of speech, defending the truth will only become more difficult.

[i] [7] See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969), holding that hate speech or fighting words are illegal only when such speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  See also Virginia v. Black, 538 U.S. 343 (2003), and Black’s Law Dictionary, 2nd ed., Brian Garner, ed., West Publishing Company, St. Paul, MN: 2003.

[ii] [7] See, e.g., Roger Severino, Or for Poorer?  How Same-Sex Marriage Threatens Religious Liberty, Harvard Journal of Law & Public Policy (2007) and Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, Backgrounder No. 2201, published by The Heritage Foundation.