More on Same-Sex Marriage and Religious Liberty

Dale Carpenter's typically thoughtful post argues that one shouldn't oppose same-sex marriage on the ground that it creates "novel" threats to religious liberty, religious liberty concerns are no reason to oppose same-sex marriage, in large part because the conflicts between religious liberty and gay rights in multiple contexts predate any recognitions of same-sex marriage.  I agree with the subordinate point.  But the problem with his conclusion is that these other conflicts, although distinct, can be affected by the recognition of same-sex marriage, for a couple of reasons.  (These are apart from any new religious-liberty challenges that gay marriage itself may raise.)

First, the methodology of the Bob Jones case and lower-court cases following it is that if there is a "firm national policy" against a certain kind of discrimination, then a compelling interest exists to override a religious liberty claim (as was done in Bob Jones; see also the analysis, reaching a different result, in Thomas v. Anchorage, 165 F.3d 692 (9th CIr. 1999)).  So the courts look for other provisions forbidding the kind of discrimination in question, and if there are a lot of them, the religious liberty claim loses.  Although same-sex marriage would be adopted state-by-state rather than nationally, its adoption in a state will certainly be cited as evidence of a firm state policy of sexual-orientation nondiscrimination that in turn further shrinks the proper scope of exemptions from gay-rights laws in other contexts.  For example, although Dale takes the position that Catholic Charities should have been exempted from the Massachusetts law requiring it to place children with same-sex couples, I've no doubt that, if the issue had gone to litigation, the recognition of same-sex marriage in Massachusetts would have been cited against any such exemption claim.  (Dale is right that the advent of gay marriage in Massachusetts didn't trigger the issue.  But it could have affected the result had Catholic Charities pursued the issue.)

Second, if recognition of same-sex marriage rests -- as is frequently asserted -- on the premise that private discrimination against same-sex relationships should be treated the same in all legal respects as private racial discrimination, then it is likely to reinforce a very grudging attitude toward religious liberty claims, paralleling the brisk dismissal of the claim in Bob Jones.  For example, since I can't imagine that a Massachusetts agency that refused to place children with interracial couples would get any shrift on a constitutional claim, the race/sexual-orientation analogy, if accepted, would seem to doom the kind of exemption for Catholic Charities that Dale supports.  And by analogy to Bob Jones, should an evangelical college such as Wheaton lose its tax-exempt status because it articulates a standard against same-sex sexual intimacy?

I don't claim that this proves religious liberty is a sufficient ground to oppose same-sex marriage all things considered.  But it does, I think, make it quite rational to be concerned, if you think that religious liberty in this context is already in a precarious state -- as is shown, for example, by the potential implications of the Bob Jones approach, and by the fact that Catholic Charities was forced out of adoption work even though plenty of other agencies were around to place children with same-sex couples.

I think that Dale is right in principle that same-sex marriage and meaningful religious liberty can coexist.  But in order for that to happen, sexual-orientation discrimination cannot be analogized in all respects to racial discrimination.  The closer analogy, at least when a religious organization is involved, ought to be religious discrimination -- where we have, in Title VII, public norms of nondiscrimination in hiring coexisting with significant exemptions for religious organizations.  For example, the federal sexual-orientation nondiscrimination bill, the Employment Non-Discrimination Act (H.R. 3685), now has -- after some pressure in legislative hearings in which I was involved -- a broadened exemption for religious organizations that largely tracks their Title VII exemption for religion-based hiring.

If religious exemptions rested on more secure foundations, then the case for opposing same-sex marriage based on religious liberty grounds would indeed be weaker.

Tom