Signs that religious liberty is not as important to the American people as it should be. First, the united front liberal and conservative Catholics presented against the Obama HHS rule has crumbled as the Catholic left accepts the concordat with the administration. Second, the NYT/CBS national poll found that two out of three Americans support the HHS rule, even for religious employers. Plus, two out of three Americans favor some form of legal recognition of same-sex relationships, either marriage (40 percent) or civil unions (23 percent).
And for Catholics in the poll? They agree with the majority on the HHS rule, against their bishops’ position, and they support gay marriage or civil unions in higher numbers than the overall majority.
See the full poll results here. Interestingly, slightly more than one in five of those polled identified as a liberal. About one-third called themselves conservative. The rest, moderate.
Here’s what I see in these results. The Catholic bishops and their allies have not made an effective case to the public that the HHS issue is at bottom about religious liberty. Rightly or wrongly, most Americans — including most Catholic Americans — are willing to see Church institutions compelled by the government to pay for something it regards as “intrinsically evil.” Free or subsidized birth control pills mean more to most Americans than religious liberty. Think about that.
This has ominous implications for religious liberty in the face of the tectonic shifts in opinion regarding same-sex unions. It’s clear that one way or another, and sooner rather than later, same-sex unions are going to be the law of the land, by popular will, if not by court fiat. If the Supreme Court upholds the recent Ninth Circuit opinion, it will obviate the legal difference between civil unions and marriage. States will have either one or the other. Over the next few years, we’ll see more states voting in same-sex marriage, with only the South and perhaps some Midwestern states holding out. Eventually — I’m guessing within five to seven years — the Supreme Court will decide once and for all whether there is a constitutional right to same-sex marriage. If the decision is yes, this will have tremendous repercussions for religious liberty in America. Such as:
Specifically, in a society that redefines marriage to include same-sex unions, those who continue to believe marriage is a relationship between a man and a woman can expect to face three types of burdens. First, institutions that support the traditional understanding of marriage may be denied access to several types of government benefits, and individuals who work in the public sector may face censorship, disciplinary action, and even loss of employment. Second, those who support the traditional understanding of marriage will be subject to even greater civil liability under nondiscrimination laws that prohibit private discrimination based on sexual orientation, marital status, and gender. Third, the existence of nondiscrimination laws, combined with state administrative policies, can invite private forms of discrimination against religious individuals who believe that marriage involves a man and a woman and foster a climate of contempt for the public expression of their views.
What does that mean concretely? This NPR story gives an example. Excerpt:
As states have legalized same-sex partnerships, the rights of gay couples have consistently trumped the rights of religious groups. Marc Stern, general counsel for the American Jewish Congress, says that does not mean that a pastor can be sued for preaching against same-sex marriage. But, he says, that may be just about the only religious activity that will be protected.
“What if a church offers marriage counseling? Will they be able to say ‘No, we’re not going to help gay couples get along because it violates our religious principles to do so? What about summer camps? Will they be able to insist that gay couples not serve as staff because they’re a bad example?” Stern asks.
Stern says if the early cases are any guide, the outlook is grim for religious groups.
A few cases: Yeshiva University was ordered to allow same-sex couples in its married dormitory. A Christian school has been sued for expelling two allegedly lesbian students. [Note: the plaintiffs ultimately lost. -- RD] Catholic Charities abandoned its adoption service in Massachusetts after it was told to place children with same-sex couples. The same happened with a private company operating in California.
A psychologist in Mississippi who refused to counsel a lesbian couple lost her case, and legal experts believe that a doctor who refused to provide IVF services to a lesbian woman is about to lose his pending case before the California Supreme Court.
The thing to keep in mind is that once same-sex marriage is constitutionalized, religious institutions that refuse to compromise on their traditional beliefs about homosexuality will be at risk of losing their tax exempt status, as the New Jersey Methodist church did in the NPR story, for refusing to allow a lesbian wedding in its pavilion. So many churches and religious institutions — e.g., schools, charities — operate at such a tight margin that to lose their favorable tax status could mean the difference between survival and extinction.
Here’s the thing: judging by this poll, most Americans probably won’t care.