Religious liberty and SSM:

As wedding bells begin ringing for gay couples and families in California, opponents of gay marriage are turning up the volume on a relatively new argument: that same-sex marriage is a threat to religious liberty. Just today we have seen two passionate salvos. Maggie Gallagher, writing at NRO, warns that gay marriage means “the official harassment and repression (by our own government) of traditional religious faiths.” Marc Stern, general counsel for the American Jewish Congress, writing in the L.A. Times, warns that “it is religious rights that are likely to be ‘obliterated’ by an emerging popular majority supporting same-sex relationships.”

There was nothing very surprising in either of these op-eds. Maggie began pressing the religious-liberty argument against gay marriage at least three years ago. Stern has a chapter on “Gay Marriage and the Churches” in a forthcoming book of essays by several authors entitled Same-Sex Marriage and Religious Liberty. The book is being sponsored by the Becket Fund for Religious Liberty, which officially takes no position on gay marriage, but regularly files amicus briefs in gay-marriage cases warning of “looming conflicts” with religious freedom.

More surprising was a report broadcast yesterday by National Public Radio, which pointed to “signs of a coming storm” in the “collision” of two legal principles: “equal treatment for same-sex couples” and “the freedom to exercise religious beliefs.” The radio version of the report offered two examples of this “collision” that have been widely circulated by gay-marriage opponents. A written addendum to the report offered several more. The most commonly cited examples, summarized below from the report, include:

*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.

*Housing: In New York City, Yeshiva University’s Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state’s highest court ruled Yeshiva violated New York City’s ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.

*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian. [UPDATE from Andrew Koppelman, with info not provided by NPR: “Right now the dispute is being litigated on a motion for summary judgment, so there’s been no trial, but Benitez’s allegations are on pp. 4-6 of her Supreme Court brief, which you can find at http://data.lambdalegal.org/pdf/legal/benitez/benitez-opening-brief.pdf. If she’s right, then she had no choice but to go to that group under her health insurance plan, received significantly inferior health care for nearly a year, evidently because of the doctors’ scruples, and was finally told, after wasting a year waiting for appropriate treatment, that she wouldn’t receive treatment from that group at all.”]

*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.

*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple’s legal fees. The photographer is appealing.

*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.

These examples, and others given in the NPR report and by gay-marriage opponents, illustrate many things. They show that there are indeed antidiscrimination laws that apply to those who provide services to the public. They show that these antidiscrimination laws sometimes require individuals and organizations to do things that these persons and organizations claim violate their religious beliefs. They show that conflicts between antidiscrimination laws and religious belief often wind up in court, requiring judges and other decisionmakers to decide how the conflict should be resolved under the law and the Constitution. They show that on at least some occasions antidiscrimination laws are held to trump religious beliefs and that, as a result, religious individuals and organizations must sometimes decide whether to comply with the law or to stop providing services to the public. They even show that many of these disputes arise in the context of religious actors who object in particular to gay relationships.

What these examples do not show, however, is that gay marriage is “repressing” or “obliterating” religious rights or that “a storm is coming” because gay couples are marrying. With the exception of the Vermont clerk refusing to perform a civil union ceremony (about which more below), none of them involve a claim of discrimination provided by the gay couples’ status as married or as joined in a civil union or domestic partnership. All of the cases involve the application of state laws barring discrimination on the basis of sexual orientation that pre-date the official recognition of gay relationships. Neither the viability of the discrimination claim nor the viability of the religious objectors’ desired exemption turns on whether the gay couple is officially recognized. In most of the cited cases, in fact, the couples’ relationship was not recognized by the state, but adding such a status to the cases would change nothing about their legal significance.

The most egregious abuse of these examples to undermine gay marriage is the Catholic Charities case, which involved the application of a 1989 antidiscrimination law. That dispute arose because the Catholic Church objected to complying with the law for the first time only after gay marriage was permitted in the state. It was a fortuitously timed conflict for gay-marriage opponents given that the state legislature was at that very moment considering a constitutional amendment to ban gay marriage.

So it is not true that (as NPR put it) gay couples “armed with those legal protections” newly provided by marriages, civil unions, or domestic partnerships, are suddenly challenging religious objectors. The conflicts between the law and religion that NPR points to have been around for a very long time. They go back some three decades, to the very first state and municipal laws that protected gay couples from discrimination in employment, housing, and education. (Indeed, conflicts between antidiscrimination law and religious objectors go back even further, to laws that forbade discrimination on the basis of race and sex.) NPR could have broadcast this same story using similar cases ten or even twenty years ago. But, apparently drawing on complaints by gay-marriage opponents, NPR chose to do so on the day California began to sanction same-sex marriages. That’s misleading and irresponsible.

What Gallagher and many others in the anti-gay marriage movement are really objecting to is the extension of antidiscrimination law to gay people — at least insofar as this extension conflicts with someone’s claim that their religious scruples require them to discriminate against homosexuals.

That’s an argument we’ve been having for a long time, and it’s worth continuing to have it. It is useful to continue to think about how antidiscrimination principles can accommodate religious faith. Religious freedom is a first and founding principle of this country. I think religious accommodation to private persons and organizations should be generously provided, even where not required by the Constitution. At the very least, accommodation should be made where it can be offered without harming the protected class. For that reason, I think an exemption should have been offered in several of the cases cited in the NPR report, including in the case of Catholic Charities of Boston (as I wrote at the time).

(In my view, public officials like the Vermont clerk cited in the NPR story, should be distinguished from private persons. As enforcers of the law and representatives of the state, they should be required to do their duty and enforce the law evenhandedly, regardless of their personal objections. While I’d be generous about accommodating the religious objections of private persons, I am very wary of introducing a system of exemption for public officers serving the public with taxpayers’ money and charged with administering the law.)

In the larger national debate over gay marriage, the biggest problem for gay-marriage opponents has been to demonstrate what Eric Posner recently called it “impossible” to demonstrate: that recognizing gay marriage causes some tangible harm. They have tried many harm-based arguments but so far nothing has stuck. Not “evidence” of social decline from Scandinavia or the Netherlands. Not polygamy. Not population implosion.

So opponents of gay marriage are now using what is basically old news in the culture war as an argument to warn the country about the supposedly novel dangers “looming” ahead because of gay marriage. It is an attractive argument because it appeals to Americans’ basic sense of fair play, their commitment to the country’s fundamental principles, and of course their own deep religious faith. It casts good religious people as victims and gay couples as victimizers who care only about themselves. If you don’t look at the complicated facts of the cases, if you disregard the applicable laws involved, if you ignore the difficulty of deciding how to administer exemptions in a consistent and principled fashion, this new harm-based argument is an appealing one.

Even the examples of conflict arising from antidiscrimination law are often exaggerated and oversimplified. The New Jersey beachfront pavilion case cited in the NPR report, for example, involves a plausible claim that the pavilion is quasi-public, not religious, property since the religious group got a $500,000 tax break after representing to the state that the disputed property would be open to the public. The group also reportedly gave up a degree of property ownership rights for the boardwalk and beach in the 19th century to avoid taxation. All of this is disputed, and the legal significance of these matters is open to debate, but it’s hardly a straightforward case of a church being required to sanction a gay wedding on its own undisputedly exclusive and private property.

Now it’s true that some states and cities (and to a limited extent, federal civil service law) protect people in various ways from “marital status” discrimination. It might be thought that such laws, where they exist, will provide more ammunition to married gay couples who face discrimination. But these laws already protect people even if they’re single, much less if their marriage is a gay or straight one.

It’s also true that we are likely to see a rise in conflicts between antidiscrimination law and religious objectors in the future. That’s not really something gay marriage is “causing,” though married gay couples will probably be most prominent among those complaining about discrimination. They don’t see themselves as second-class citizens and are more likely to object when they think they’re being treated as if they are.

Instead of gay marriage causing a collision, both gay marriage and religious conflicts with antidiscrimination law are themselves the product of a much larger trend that is moving the tectonic plates of our culture. That trend is the increasingly common view that homosexuality is a natural and harmless variation of human sexuality, that gay people are entitled to be judged on their merits and not on the basis of outdated opprobrium, and that these beliefs should to a significant degree be reflected in law.

Many people in our society object strongly to this trend. I think the law should make room for them to a considerable extent. It should be possible, in particular, to recognize gay marriage and to continue to protect religious faith at least to the extent we have already done so when religious views about marriage diverge from the secular law of marriage. Of course no religion should be required to change its doctrine to recognize gay unions. Of course no religious official should be required to perform a same-sex marriage (or an interracial wedding, as some once objected to, or a second-marriage wedding, as some object to now, or any other wedding he objects to). These things have never been required and nobody is asking that they should be.

While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion — all without extinguishing religious faith.

Matters are more complicated when religious persons and organizations provide services to the public or ask for public funds while at the same time requesting to be exempt from the rules that apply to everyone else. These conflicts come up in a dizzying variety of contexts, where the equities vary wildly and the costs of allowing exemptions are sometimes great and sometimes small. No person of good will should have a one-size-fits-all approach to this — everybody gets an exemption all the time or nobody ever does, no matter the circumstances — and our courts and laws don’t usually adopt a categorical approach. Let’s think hard about the hard choices involved, but let’s not exploit pre-existing conflicts to gain the upper-hand in the gay-marriage debate or scapegoat gay couples who want their families protected by the law.

UPDATE: There’s an engaging exchange now between Robert Vischer and Dan Markel, both of whom support SSM, on the subject of exemptions for religious dissenters from antidiscrimination laws. See Vischer’s post here and Markel’s response here. Vischer is somewhat more concerned about the conflicts between religious liberty and SSM than I am; Markel is generally less willing than I am to indulge accommodations. At any rate, it’s a very good exchange and worth a look.