Catholic bishops get it right on gay marriage
Three years ago, I wrote a column (behind the Dallas Morning News firewall now) saying that we social and religious conservatives had lost the battle over gay marriage, and would be wiser to marshal our resources behind an all-out push to erect a constitutional firewall around religious liberty. Why? Several reasons:
1) Though there’s still a bare majority for privileging in law traditional marriage (a majority that has eroded since I wrote the column, I should say), social science research unquestionably shows that as the oldest Americans die off, gay marriage will enjoy wide popular approval.
2) This should not surprise us. The idea of marriage has changed dramatically in our culture. It is now considered to be primarily a statement about the feelings of two people for each other, and their willingness to unite themselves legally for as long as they both shall love. If that’s what marriage is, why shouldn’t gays be allowed to marry?
3) Most people are completely ignorant of the religious liberty implications of granting full civil rights — including the right to marry — to gay people. I find that many people would be fine with a live-and-let-live legal regime governing marriage, gay and straight. But they don’t understand — and neither gay activists nor the mainstream media are eager to publicize this — how there are unavoidable clashes between religious liberty and civil rights straight ahead. Something’s got to give. Maggie Gallagher and a group of conservative and liberal legal scholars were onto this five years ago. Excerpts:
Marc Stern has known Chai Feldblum since she was eight years old. “Vivacious, really extraordinary,” he says as he smiles, shaking his head at the memories of the little girl whose father he knew well. “Chai is among the most reasonable [gay rights advocates],” he says. “If she’s having trouble coming up with cases in which religious liberty should win, we’re in trouble.”
As general counsel for the American Jewish Congress, Marc Stern knows religious liberty law from the inside out. Like Anthony Picarello, he sees the coming conflicts as pervasive. The problem is not that clergy will be forced to perform gay marriages or prevented from preaching their beliefs. Look past those big red herrings: “No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them. Same-sex marriage would, however, work a sea change in American law. That change will reverberate across the legal and religious landscape in some ways that are today unpredictable,” he writes in his Becket Fund paper.
Consider education. Same-sex marriage will affect religious educational institutions, he argues, in at least four ways: admissions, employment, housing, and regulation of clubs. One of Stern’s big worries right now is a case in California where a private Christian high school expelled two girls who (the school says) announced they were in a lesbian relationship. Stern is not optimistic. And if the high school loses, he tells me, “then religious schools are out of business.” Or at least the government will force religious schools to tolerate both conduct and proclamations by students they believe to be sinful.
Stern agrees with Feldblum that public accommodation laws can and should force truly commercial enterprises to serve all comers. But, he asks, what of other places, such as religious camps, retreats, and homeless shelters? Will they be considered by courts to be places of public accommodation, too? Could a religious summer camp operated in strict conformity with religious principles refuse to accept children coming from same-sex marriages? What of a church-affiliated community center, with a gym and a Little League, that offers family programs? Must a religious-affiliated family services provider offer marriage counseling to same-sex couples designed to facilitate or preserve their relationships?
“Future conflict with the law in regard to licensing is certain with regard to psychological clinics, social workers, marital counselors, and the like,” Stern wrote last December–well before the Boston Catholic Charities story broke.
Think about that for a moment. Of all the experts gathered to forecast the impact of gay marriage on religious organizations, no one, not even Stern, brought up adoption licenses. “Government is so pervasive, it’s hard to know where the next battle will be,” he tells me. “I thought I had a comprehensive catalog, but the adoption license issue didn’t occur to me.”
Finally, I ask Stern the big question on everyone’s mind. Religious groups that take government funding will almost certainly be required to play by the nondiscrimination rules, but what about groups that, while receiving no government grants, are tax-exempt? Can a group–a church or religious charity, say–that opposes gay marriage keep its tax exemption if gay marriage becomes the law? “That,” says Stern, “is the 18 trillion dollar question.”
Twenty years ago it would have been inconceivable that a Christian or Jewish organization that opposed gay marriage might be treated as racist in the public square. Today? It’s just not clear.
“In Massachusetts I’d be very worried,” Stern says finally. The churches themselves might have a First Amendment defense if a state government or state courts tried to withdraw their exemption, he says, but “the parachurch institutions are very much at risk and may be put out of business because of the licensing issues, or for these other reasons–it’s very unclear. None of us nonprofits can function without [state] tax exemption. As a practical matter, any large charity needs that real estate tax exemption.”
He blames religious conservatives for adopting the wrong political strategy on gay issues. “Live and let live,” he tells me, is the only thing around the world that works. But I ask him point blank what he would say to people who dismiss the threat to free exercise of religion as evangelical hysteria. “It’s not hysteria, this is very real,” he tells me, “Boston Catholic Charities shows that.”
Today in Washington, the US Catholic bishops announced a new initiative to fight for the Church’s priorities in terms of religious liberty. Three cheers for them. I hope Evangelical and Orthodox leaders, as well as Jewish and Muslim ones, will wake up as the Catholic bishops have done and see what is at stake here. And let their congregations know. I am not a legal strategist, so I can’t say what realistic possibilities there are for preserving religious liberty to a substantial degree in the face of changing laws and changing attitudes towards gay marriage. But religious traditionalists and others who care about religious liberty had better open their eyes. Gay marriage is coming, whether we like it or not. That ship has sailed. It may be imposed on an unwilling country by the Supreme Court, but if not, it will be arrived at by popular demand. The numbers don’t lie. We conservatives are a lot closer than many of us think to waking up one day and finding ourselves having to make very hard choices between their faith convictions and preserving the ability of our institutions to operate freely. We should work now, while we still have substantial political leverage, to protect ourselves from the new order.