Whenever we discuss religious liberty and evolving jurisprudence on gay rights, we hear the familiar refrain: nobody is going to make a church marry a same-sex couple, so there is no real conflict, outside of the fraidy-cat imaginations of religious conservatives.
Well, Commonweal, as many of you know, is the leading liberal Catholic magazine, and it has just published an essay by Notre Dame law professor Richard Garnett explaining how there really is an emerging threat to religious liberty from all this. Excerpts:
I worry, though, that—as the editors of Commonweal have observed (“Protecting Religious Freedom,” July 29, 2011)—the dangers to religious freedom posed by the legal redefinition of marriage are real and that “disentanglement” is not a stable or feasible response to these dangers.
In an important 2008 volume called Same-Sex Marriage and Religious Liberty: Emerging Conflicts, an ideologically diverse collection of scholars identified carefully the many “potential church-state conflicts” that have been and will be “triggered by redefining legal marriage.” Again, these conflicts need not involve direct regulation of sacraments or rituals in order to challenge, threaten, or undermine believers’ and communities’ religious liberty. Instead, what is likely to happen—what is already happening, in fact—is that these conflicts will erupt and play out not within religious communities themselves but in the sphere of civil society, where they will involve, for example, requirements for professional licensing and accreditation, limits on religiously inspired expression and advocacy regarding marriage in public education and employment, conditions on otherwise generally available public benefits or on cooperation between governments and religious social-welfare agencies, expansions of the wide range of antidiscrimination laws and conscientious objections to those laws’ application, and attacks on the charitable and tax-exempt status of religious entities that adhere in their practices and teaching to the traditional view of marriage.
Garnett zeroes in on Justice Kennedy’s language in his DOMA ruling, which characterizes DOMA defenders as motivated by hatred and a desire to “humiliate” same-sex couples. The professor senses that this kind of thinking — that is, holding that bigotry is the only reason to privilege traditional marriage — is bound to have an affect on the way we think about and practice religious liberty:
It is easier to respect religious freedom in law and policy when everyone agrees or when governments do not do very much. With disagreement and regulation, however, inevitably comes conflict between religious commitments and legal requirements and, when it comes, the majority tends to take care of itself. What about the rest? In a constitutional democracy like ours, we are generally willing to absorb some costs and suffer some inconveniences in order to accommodate the invocation of rights by dissenting or idiosyncratic minorities, especially when the majority thinks that it has a stake in those rights. For example, America still takes a robustly libertarian approach to the freedom of speech, and protects offensive and worthless expression to an anomalous extent, because most Americans still think that protecting misuses and abuses of the right is “worth it.”
However, as religious liberty increasingly comes to be seen as something clung to by a few rather than cherished and exercised by many, as religious traditions and teachings start to strike many as the expensive and even dangerous concerns of quirky, alien margin-dwellers, and as the “benefits” of allowing religious believers’ objections or religious institutions’ independence to stand in the way of the majority’s preferred policies begin to look more like extractions by small special-interest groups than broadly shared public goods, we should expect increasing doubts about whether religious liberty is really “worth it.” We should be concerned that the characterization by the majority in Windsor of DOMA’s purpose and of the motives of the overwhelming and bipartisan majority of legislators that supported it reflects a view that those states—and religious communities—that reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom.
Hence the Law Of Merited Impossibility:
The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”
[H/T: First Things.]