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Gay-rights advocates know the formula and so do their opponents: If gay marriage becomes a civil right, then religious believers who dare to defend ancient doctrines on marriage will become de facto segregationists and suffer the legal consequences.
The problem for the left is that this happens to be true.
“Before we shrug and reply, ‘So what if it’s religious? It’s still bigotry, it’s still intolerable,’ we need to remember that religious liberty is America’s founding principle. It is embedded in the country’s DNA, not to mention in the First Amendment,” argued gay commentator Jonathan Rauch, writing in The Advocate. “If we pick a fight with it or, worse, let ourselves be maneuvered into a fight with it, our task will become vastly harder. ... Even if you don’t happen to believe, as I do, that religious liberty is, like gay equality, a basic human right, the pragmatic case for religious accommodations is clear: Being seen as a threat to religious freedom is not in our interest.”
This is the state of things, as the U.S. Supreme Court ponders whether the time is right to address this hot-button topic. Meanwhile, gay-rights groups recently won several ballot-box victories in liberal ZIP codes.
Some conservatives have proposed radical strategies in response, such as scholar George Weigel’s suggestion that it may be time for the Catholic church to “preemptively withdraw from the civil marriage business, its clergy declining to act as agents of government in witnessing marriages for purposes of state law.”
That would be a potent symbolic gesture, but “taking that action would do nothing to resolve the religious-liberty issues that are causing conflicts here in America, or will cause additional conflicts in the future,” said Stanley Carlson-Thies, director of the Institutional Religious Freedom Alliance. Even if traditional religious leaders attempt to legally separate Holy Matrimony from secular marriage, it is still the government’s definition of marriage that will decide a variety of issues outside sanctuary doors, especially in public life.
“The other question,” Carlson-Thies said, “is whether those on the cultural left will be willing, at this point, to settle for civil unions. ... We will need people on both sides to work together if there are going to be meaningful compromises.”
One divisive issue in these gay-marriage debates overlaps with current fights over White House mandates requiring most religious institutions to offer health care plans covering sterilizations and all FDA-approved forms of contraception, including so-called “morning-after pills.” These Health and Human Services requirements recognize the conscience rights of employers only if they are nonprofits that have the “inculcation of religious values” as their primary purpose, primarily employ “persons who share ... religious tenets” and primarily serve those “who share ... religious tenets.”
Critics insist this protects mere “freedom of worship,” not the First Amendment’s wider “free exercise of religion.”
Here is the parallel: In gay-marriage debates, almost everyone concedes that clergy must not be required to perform same-sex rites that violate their consciences. The question is whether legislatures and courts will extend protection to religious hospitals, homeless shelters, summer camps, day care centers, counseling facilities, adoption agencies and similar public ministries. What about religious colleges that rent married-student apartments or seek accreditation for their degrees in education, counseling or social work? What about the religious-liberty rights of individuals who work as florists, wedding photographers, wedding cake bakers, counselors who do pre- or post-marital counseling and other similar forms of business?
These are only some of the thorny issues that worry many activists on both sides of the gay-rights divide. Shortly after Connecticut legalized same-sex marriage in 2009, law professor Douglas Laycock, then of the University of Michigan, shared his support for religious exemptions in a letter to state leaders.
“I support same-sex marriage,” Laycock stressed. Nevertheless, the “net effect for human liberty will be no better than a wash if same-sex couples now oppress religious dissenters in the same way that those dissenters, when they had the power to do so, oppressed same-sex couples.
“Nor is it in the interest of the gay and lesbian community to create religious martyrs in the enforcement of this bill. ... Every such case will be in the news repeatedly, and every such story will further inflame the opponents of same-sex marriage. Refusing exemptions to such religious dissenters will politically empower the most demagogic opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive.”
Terry Mattingly is the director of the Washington Journalism Center at the Council for Christian Colleges and Universities and leads the GetReligion.org project to study religion and the news.