The Volokh Conspiracy

Mr. Kimball: If only it were so clear.

Consider what just happened in Massachusetts -- the Roman Catholic Church was forced to close its adoption agency because it could not, in light of its faith, comply with the State's commandment that it not discriminate against homosexual couples. Now you obviously think that the State acted properly, but I don't see how you can say that the State's action did not infringe on the religious liberty of the Church.

I am sure there are other incidents of marriage, besides adoption, that present similar conflicts. Pretending that they don't exist is not the way to win hearts and minds on this.

Thank you, Jason Fliegel, for the positive tone.

There might be a word for that you described? Evolution

Rather,
"when our families and communities scoff at the validity of our commitments."

Just wondering, suppose I have an epiphany (like St. Paul or St. Ignatius Loyola) and begin a new sect based upon the word of God as given to me in such epiphany, which sect holds that same sex marriage is part of its dogma.

Could such a religion survive in this country? Would its marriages be respected by the states (and would the federal government protect such rights under the 14th amendment).

The nature of religious belief is such that religious organizations usually cannot "compromise" on issues that they believe are right or wrong. I would concur with Observer and disagree with Just in that a conflict between ideals of same-sex marriage and religious equality is quite likely in the near future. A religious organization acting in an area regulated by the government must comply with government-enforced standards of equality, fairness, etc. But if those standards violate the religious ideals espoused by the organization, the organization will either comply with the standards (and implicitly concede they were wrong) or stop providing those services. Arguing whether this constitutes a "choice" or being "forced" out is mere semantics and is irrelevant.

If the case of Catholic Charities in Massachusetts is repeated, I predict significant withdrawal of religious organizations providing services in those arenas regulated by the government. And I don't see religious organizations altering their beliefs merely because of governmental requirements.

Dumb article. It doesn't ask whether churches have the liberty to oppose same-sex marriage. It assumes religious liberty includes everything deemed as, "matters of conscience."

How do you define matters of conscience legally? I was under the impression Americans had the right to belief, but not action. I'd argue, religious bodies have the right to conscience. Yet, conscience means, awareness of moral obligation. It doesn't imply the right to act with moral obligation.

What if religious organizations moved to decrease women in the work force? How would the decision impact American's creativity, when our future economy depends on creativity? Sometimes, Americans forget the economic benefit of diverse thought.

Steven Neff
University of Michigan

Public_Defender - there is *NO* serious argument against gay marriage. Religious liberty, more generally person liberty, requires that no person be FORCED into any sort of marriage. That has nothing to do with preventing others from pursuing their happiness and seeking to live justly according to the dictates of their conscience.

Sorry for the repetition but it seems required. This matter is SO clear cut and simple if looked at with even a modicum of reason. Yet, here we are still talking about it.

Sorry for the snarky post above. It's an good question, but I get a rush of schadenfreude when people who have worked so hard to marginalize and punish a minority worry about being marginalized and punished themselves.

I give a pass to the true libertarians who oppose governement discrimination against gays but who also oppose anti-discrimination laws imposed on the private sector.

But the current system disciminates against pro-gay-rights religion. For example, a reform Rabbi does not have the legal right to perform a marriage that he thinks is perfectly supported by Jewish law. He's bound by the politically conservative Christian rule that only a man and a woman can be married.

Anti-gay-discrimination laws will be generally applicable laws aimed at helping gays. They are no more burdensome on conservative Christians than the drug laws are on some Native American Faiths.

why does gay marriage poses any threat to religious liberty? the complaints seem to be about having to comply with antidiscrimination laws or regulations. so why is the objection to gay marriage rather than to laws and regulations prohibiting discrimination on the basis of sexual orientation? or denying benefits to groups who so discriminate.

'no discriminating against gay people' seems like an unproblematic general rule to me. laws against homicide infringe against the religious liberty of those who want to engage in human sacrifice too.

I can easily foresee lawsuits against churches attempting to have their charitable tax status removed because they won't perform gay weddings. It's clear that proponents of SSM have no tolerance for dissent and will use all means available to forceably suppress it. Just witness the jihad being waged against the boy scouts.

catholic charities could also have kept to their prior practice and kept letting gay couples adopt. they only discovered this so-called principle of religious conscience after mass. adopted ssm.

"It was their choice to pick one of the options, but if you hadn't put the options there, forcing the choice, they wouldn't have to make it."

Isn't this common in law? The 21-year-old drinking age in all states, for example.

Not sure what your point is. I would certainly characterize the 21 year old drinking age as something which has been forced on the states by the government and would not claim that the states' decisions to have a 21 year old drinking age are voluntary in any meaningful sense.

houston lawyer: do churches that refuse to perform interracial weddings lose their tax-exempt status? i dont know. if they dont then the chance churches will lose their tax-exempt status for refusing to perform gay weddings is zero.

Anonymousss:
catholic charities could also have kept to their prior practice and kept letting gay couples adopt. they only discovered this so-called principle of religious conscience after mass. adopted ssm.

Good point. Catholic Charities had been helping kids escape the foster system and move to the security of stable homes with gay parents. It wasn't until after SSM that they chose to change their position.

It's funny how some people think that gays have a choice but the Archbishop of Boston does not.

The reality is that SSM would make it harder for some people to practice their faith. But I think it's more important for kids of gay parents to get the protection of marriage.

This is absurd. It conflicts no more with religious liberty than currently existing laws. If you are a religious institution that doesn't like interracial marriage or doesn't like blond people marrying brunettes you have exactly the same problems. The only difference here is that in fact more religions are likely to object which is a purely practical concern not a matter of liberty.

Q: Will Same-Sex Marriage Collide With Religious Liberty?

Of course it will, just as it does with everything else.

Religious Liberty is limitable in two senses:

1. To the extent it conflicts with fundamental government interests,
e.g., no peyote smoking regardless of how much a part it might be a groups core religious practices; or no child marriages;

2. To the extent it conflicts with others' religious beliefs,
e.g., what of the religious beliefs of religious organizations that accept same-sex couples?

Since such conflict is inevitable, our system requires government to remain as neutral as practical in balancing different beliefs. It is, ironically, precisely on this basis that some believe government should not restrict same-sex marriage. The interest of a couple to practice their own beliefs, including an acceptance of such marriages, outweighs a "negative" interest for other parties to exist free of the existence of such marriages ABSENT the presence of a compelling governmental interest to the contrary (which is the point that seems to be difficult for such opponents to articulate).

I can easily foresee lawsuits against churches attempting to have their charitable tax status removed because they won't perform gay weddings.

Houston Lawyer: You said this same thing in another thread--and it's the one argument that NO ONE on either side of this debate takes seriously. Catholic churches are free not to marry divorcees, since it goes against thair doctrine. Churches are free not to perform inter-faith or interracial marriages, if they feel it offends their doctrine. If we've been able to navigate these distinctions for decades, same-sex marriage isn't about to change that.

Once you get away from the marriage ceremony itself, however, it gets trickier: The church offers health insurance to certain full-time staff, including the paster, the organist, and some of the maintenance staff. The organist marries a partner of the same sex. Does the church fire him? Refuse to insure his partner? Would either of these open them to a lawsuit?

A Catholic church refuses to perform wedding ceremonies for divercees remarrying other partners or for same-sex couples. However, in the church register, they are willing to list and show in a single photo the remarried divorcees and their children from both marriages as a single family but force the same-sex couple to appear as two single people. Would anti-discrimination laws be applicable here?

And then there are the issues faced by non-church religiously affiliated organizations offering services to the public at large, whether they adhere to the faith of the sponsoring organization (hospitals, day-care centers, etc.).

People writing about this topic always mention Catholic Charities, but, as noted above, that situation doesn't make for a very strong case, since Catholic Charities had in previous years quite happily from time to time put children into homes headed by same-sex parents, and the leaders of that organization wished to continue to do so, and several of them resigned rather than follow the Archibishop's sudden dictum (which had far more to do with church politics surrounding the new pope than anything happening in Massachusetts).

That said, I agree with Public Defender: The burden that same-sex marriage would put on some churches to find ways to accommodate same-sex married couples in providing services is no greater than the burden currently on churches (e.g., MCC) whose doctrines would encourage them to perform marriages for same-sex couples that are equal in every way to mixed-sex marriages, including being legally binding, but are prevented by law from doing so.

It is really all quite irrelevant - at least for the foreseeable future. (Warning: about to make a very non-legal argument). If/when churches get stripped of tax exempt status or the like, you will see such a backlash against the gay movement, (which btw doesn't seek equality under the law, but social approval, but that is a side point), that it will set you all back for decades. So please, do it. Middle America will scorn you for it and cast you into the political wastelands.

So, please go right ahead...

Thief, do you really want the government to get involved in the business of deciding what is "genuine religious belief" and what is merely "bigotry in religion's clothing?"

When it comes to providing public funds to a religious institution to provide a public service, why not?

1. Courts apply the rational basis and/or strict scrutiny tests to all kinds of public policy, no matter what its inspiration, divine or otherwise.

2. It actually isn't all that difficult to tell true religious belief from bigotry cloaked by religion. No one could possibly confuse Osama Bin Laden or Fred Phelps with John Paul II or the Dalai Llama.

3. It might be philosophically messier that just simply telling charities "our way or the highway," but IMO societies are better served by having more institutions, especially religious ones, provide public services (at least of the kind that require a monopoly).

It is my understanding the Catholic Charities of Boston stopped placing children in homes headed by gay couples because the Vatican was unaware they were doing it, became aware because of the controversy surrounding gay marriage, and ordered them to stop it.

And the idea that religious liberty and gay marriage won't collide is absurd. What about marriage counseling? Such services are licensed by the state. Will it be ok for churches to agree to only counsel straight couples? Not if some of the more strident on this thread get their way. The Church will be told to serve all couples (stop discriminating against gays) or stop providing the service. Isn't the Church being told at that point either to abandon what it considers an essential part of its ministry (counseling couples) or to consider as "married" couples that their faith tells them are not?

chrismn,

I agree with your argument, but I would add there is nothing inherently wrong with infringing on religious liberty when religion enters the public square. Otherwise, every public policy that conflicted with any religious teaching would have to be rejected. This issue is a red herring.

So smug and silly. And dangerous.

In this case, Religious Liberty is an important bulwark against the manifest stupidity of gay marriage. Gay Marriage is destructive to the State, both in theory, and, as we can see from Europe, in practice. To prefer one thing over another in law is not discriminatory when there are non-discriminatory reasons to do so.
The Catholic Church in Mass. favors putting children in families with both mothers and fathers because--- amazingly enough--- they believe that children do better when they have both a Mother and a Father. This entirely reasonable belief is now equated with anti-miscegnation laws by fools who can't see beyond themselves.

Yup -- and remember -- The Catholic Church happily put children in gay households until recently. So, Mr. Berman, was the Church wrong then, or is it wrong now?
Every study has shown that children of gay parents, whether natural or adoptive, have done at least as well developmentally as those with opposite sex parents. No study has concluded otherwise.

And just as not every gay person makes the ideal parent, neither does every straight person - and vice versa. Every adoption agency agrees that it is actually better to put a child in a good household of loving gay parents than to put one in a bad household of straight parents. I recall the minister from Indiana who fought a gay couple's adoption of a child and took the little girl himself, and later authorities found that he was sexually abusing this girl.

As for Europe, the only person who has made the claim that Europe is worse off for gay marriage is Stanley Kurtz. When his analysis was challenged, he finally admited that the current trends of divorce and out of wedlock births started well before gay marriage, and so hardly had any impact. Which makes sense, since gay marriage has been only a reality in a few Belgium and the Netherlands for the past four years or so, hardly enough time to access major marriage trends.

If you go to Canada, you will find that they are handling gay marriage just fine.

Do schools ever teach about the concept of marriage in home ec or other courses? (Do they still teach home ec?) If so, and if any schools teach that SSM is a legitimate institution, then to prevent a collision with religion (or dissenting views on human psychology) parents must be allowed to have their kids opt out.

It is really all quite irrelevant - at least for the foreseeable future. (Warning: about to make a very non-legal argument). If/when churches get stripped of tax exempt status or the like, you will see such a backlash against the gay movement, (which btw doesn't seek equality under the law, but social approval, but that is a side point), that it will set you all back for decades. So please, do it. Middle America will scorn you for it and cast you into the political wastelands.

So, please go right ahead...

This reminds me of that beautiful Biblical passage, "Give unto God that which is God's, but pay nothing to Caesar, for thou art tax exempt." Or something like that.

i still dont see why people are complaining about gay marriage rather than antidiscrimination laws. the purported infringements on religious freedom are all about how gay marriage will make it harder for religious orgs to discriminate against gays.

as for school curricula, there's no problem. jehovah's witnesses dont have the right not to have the teacher lead the class in the pledge of allegiance. fundies cant keep their kids from being taught evolution. christian scientists cant force the schools to teach that prayer works better than medicine. why is this different?

I don't have the time to go over Eskridge vs. Kurtz piece by piece, but let me point out a few things:
1) Nobody bears any ill will to gay couples who wish to raise children. It's a noble and difficult undertaking and they deserve credit for it. At the same time, that doesn't mean that-- all else being equal-- the children would do as well as they would with both a mother and a father. As far as studies are concerned, a) sociologists have a terrible track record with political issues (e.g., they all thought that welfare reform was terribly destructive), b) related, the studies have very limited definition of "just as well.", c) none of those studies follow into later marriage, divorce, child-rearing statistics (related to b and a).
2) Eskridge and all have lost the debate and are just unwilling to admit it. For example, their only argument against Kurtz's findings in Scandinavia is "marriage and childrearing in Scandinavia was falling apart before gay marriage became law." Is that what we want for America?
3) Don't have to ask me, it's the theorists on the Left who claim that same-sex marriage will deconstruct marriage and open the door to all sorts of alternative relationships, such as polyamory. That's a point of agreement between the theorists on both sides, it's just that the far left *wants* to get rid of marriage.

A Berman:

1) Nobody bears any ill will to gay couples who wish to raise children. It's a noble and difficult undertaking and they deserve credit for it. At the same time, that doesn't mean that-- all else being equal-- the children would do as well as they would with both a mother and a father.

No serious studies show any significant difference between kids raised by a same-sex or mixed-sex couple. But let's say for the sake of argument that future studies show clearly and incontrovertably that, all else being equal, kids do slightly better if their parents are a mixed-sex couple rather than a same-sex couple. Aren't those kids being raised by same-sex couples still likely to do better:
* than kids in the foster care system?
* than kids being raised by single parents?
* if their same-sex parents have the protections and obligations of marriage than if they don't?

Even if someone accepts all your premises, you seem to want to let the perfect be the enemy of the good.

a berman; as for your #2, your argument is a non sequitur. the point is that marriage rates had been falling in scandanavia before they instituted same-sex unions, and they didnt start falling faster after same-sex unions were legalized. so the same-sex unions probably werent the cause of the decline in marriage rates.

do you believe in reverse causality or something? smoking today gives me lung cancer tomorrow, not yesterday.

SSM will merely make the problem worse because since concepts like "mother", father", "husband", and "wife" will be banned from official use and from government schools we'll have loads of opportunities for social conflict. [Note that Mass. has banned husband and wife from state forms and anti-harrassment-law will do the rest.]

I'll grant you that some people would not be able to do everything they believe their religion requires (ask Native Americans who want to use Peyote about that), but what's the big deal about changing "mother" to "parent" and "wife" to "spouse" on forms?

As to social conflict, we have always had that. It's just that the gay person has traditionally lost. Now, the anti-gay person sometimes loses. I don't see how SSM adds any social conflict. It just changes who wins and who loses.

Oh, one more time--
a) I'm not against gay couples adopting children. I acknowledge the good work done by gay adoptive parents. I think there are reasons to preference married man-women couples over them.

b) Scandinavia: Again, the best anyone can do is claim that marriage rates went down before they allowed same-sex marriage. Where are the same-sex marriage success stories? We didn't invent it-- Rome had it for a while, during their declining period starting with (get this) Nero. Failure in the past, and failure today.

How did Scandinavia's attitudes change in the years before they decided to permit SSM? What is the role of marriage in society? Look at that closely, and you can see the reasons for failure.

Scandinavia: Again, the best anyone can do is claim that marriage rates went down before they allowed same-sex marriage.

It's both the best and the worst anyone can claim.

Where are the same-sex marriage success stories?

Given that same-sex marriage has no impact on traditional marriage and is needed to provide equal rights, why do you require that same-sex marriage somehow improve traditional marriage's standing (a ridiculous standard).

jrose:

Given that same-sex marriage has no impact on traditional marriage and is needed to provide equal rights...

Given two irrelevant arguments? The best homosexual marriage advocates can hope for is already a reality -celebration and recognition of homosexual marriage by a few minor religious sects.

Homosexual liberty like Religious liberty is ALL about doing as one chooses --NOT about expecting society to fund such activity UNLESS society chooses to do so... There is no right to a social handout for what chooses to do...

Societal accommodation, reward, and privilege will never happen in regards to homosexual marriage. Those homosexually inclined are seeking a handout that society has no rational basis to fund, has chosen not to fund and will continue to choose not to fund.

The equal rights canard hoisted on left leaning flag poles is but advocacy for socialism -plain and simple. Such wealth redistribution premised in sexual acrobatic ability as well will not be funded by society...

There is NO rational basis for society to merit accomodation, reward, and privilege upon homosexual couples.

Why should marriage and with it the societal accommodation and privilege be limited to only heterosexual couples that wish to marry?

Simply put, because society has decided so. As evidenced in tradition, conventional wisdom, common law, and enacted law. Society -the people through elected representatives, in legislative bodies have enacted legislation that is premised alone upon the rational basis of procreation -society has decided such... Unlike those arguing for a leftist utopian socialist village ideology would suggest, marriage has never been accommodated, merited privilege, and rewarded simply to foster and promote love, child rearing, or even monogamous sex -these things are but incidental to the rational basis...

Incidental exceptions, e.g. couples who choose to contracept, do not negate the rational basis, they test it and in doing so clearly contrast against and specifically identify the basis that some attempt to deny as one very much existing and relevant. Case in point, Griswold v. Connecticut where premised upon a right to privacy it was decided that individuals have the right NOT to procreate via use of contraceptives...

One can clearly see that with Griswold it is that contrasted with the exception that demonstrates clearly the rule, the rational basis of procreation exists!

Regardless a legislature has not chosen to handle exceptions to the basis, e.g. those that choose to contracept, exceptionally by incorporating more rules or by changing totally the basis or doing away with ANY marital accommodation -that is their prerogative, not something for the courts to decide.

Again, as evidenced in Griswold v. Connecticut, there is no supposed heterosexual (or homosexual) right to be accommodated and rewarded by society for entering into non-procreative marriage -such marriages are exceptions incidental to the basis of procreation with such incidence being premised in the right to privacy (just as abortion is). Unlike privacy, marital accommodation, subsidy, and reward is a societal privilege premised upon legitimate and rationally based societal discrimination -marital accommodation, subsidy, and reward is NOT a right...

It is only by illegitimately ignoring the rational basis of procreation - illegitimately conflating the right to privacy (which prohibits the State from enforcing procreation) with the privilege accorded marriage (rationally based in procreation as provided for legislatively by the State) that one can even attempt to argue the ability to choose to engage in homosexual sex with another as something that merits anything from society.

In essence, homosexuals do not get a "free pass" under the privacy right like non-procreative heterosexuals do BECAUSE homosexuals objectively can not possibly ever procreate homosexually...

The ability to procreate and the possibility of procreation -something two homosexuals can not do no matter how much they try...

Some may argue -but what of no-fault divorce laws? Did not the "procreative position" as to rational basis lose most of its force in the 1970's when almost every state passed no-fault divorce statutes?

The legal impact of no-fault divorce laws could be argued both ways and I would suggest that in resolving apparent contradictions between the two ways one would necessarily find the truth as to just what the continued rational basis premising accommodation and privilege of heterosexual marriage was and even more so is now as evidenced by direct correlation to continued societal accommodation and privilege.

e.g. no fault divorce simply is an admission that love can not be legislated and as such is by default not a rational basis premising ANY accommodation and privilege (therefore promoting love via homosexual marriage is a non-starter)...

e.g. no fault divorce simply is an admission that keeping a couple together in the interest of raising children can not be legislated and as such is by default not a rational basis premising ANY accommodation and privilege (therefore promoting raising of children via homosexual marriage is a non-starter)...

Take the case of any single parent -yes, they procreated; however, they do not get the marital privelege or accomodation merited by society and enacted legislatively... Does finding a partner and engaging in homosexual activity suddenly change this legal precedence?

Take the case of two single parent sisters living together -yes, they procreated; however, not with each other YET they love each other as family -- AND they too do not get the marital privelege or accomodation merited by society and enacted legislatively... Would the two of them engaging in homosexual activity suddenly change this legal precedence?

Take the case of foster care parents who get funds from the State FOR the children not because of their sexual procilivity. Would foster care parents engaging in homosexual activity suddenly change this legal precedence?

IF society has not and does not reward love and child rearing with the benefits reserved marital privilege then what is the only rational basis that only the irrational would ignore? -- The answer is obvious --PROCREATION

Legal Novice's intra-family hypo is easy to knock down. Discouraging sexual predation within families is the reason we don't let family members get married to each other. Parents shouldn't be allowed to groom their children to be sexual partners for each other.

The idea that pro-gay-rights people are conditioning marital benefits on sexual activity is just silly. No one requires heterosexual couples to have sex to get the legal benefits (and responsibilities) of marriage. We also shouldn't ask gay people about their sex lives.

Other than his sister-marriage argument, Legal Novice doesn't explain why the children of same sex parents should be denied the protections of marriage--health insurance, automatic inheritance, child support and visitation upon divorce, etc. Why shouldn't those kids should have the same rights as the adopted kids of non-procreative heterosexual couples?

Ironically, the lack of same sex marriage has reduced the incentive for some heterosexuals to marry. Because they can't marry, gays have developed many quasi-marriage contracts. Because many companies want to support gay families, they have given benefits to unmarried but cohabiting workers. Often, unmarried heterosexuals can use the benefits. If gays could get married, then companies could limit benefits to married couples only.

So, we come back to the point that some people don't see a value to SSM, but many others do, and in increasing numbers year-after-year and generation-after-generation. And the anti-gay foes of SSM had better hope that gay rights people are more tolerant than the anti-gay people have been.

(And please, keep arguing that "non-procreative" relationships aren't meaningful enough to deserve the rights and duties of marriage. That helps drive the millions of infertile couples toward the pro-same-sex marriage camp.)