As a growing number of states stand poised to pass same-sex marriage laws, they should consider this: It's possible to legalize gay marriage without infringing on religious liberty. But it takes careful crafting of robust religious protections. And no state has gotten that right yet.
The country is deeply divided on same-sex marriage. But once it is recognized legally, all kinds of people -- clerks in the local registrar's office, photographers, owners of reception halls, florists -- might not have the legal right to refuse to provide services for same-sex weddings, even if doing so would violate deeply held beliefs.
Some have argued that gay-marriage laws do not need such guarantees because they don't require religious objectors to do any particular thing. But new laws are interpreted in light of existing statutes, and Vermont and Connecticut -- as well as all six states still considering same-sex marriage -- have laws on the books prohibiting discrimination on the basis of sexual orientation.
Conscience protections are a thoroughly American idea. Since Colonial times, legislatures have exempted religious minorities from laws inconsistent with their faith. Such exemptions allow Americans with radically different views on moral questions to live in peace and equality in the same society.
The gay, quasi-libertarian, pro-Obama Andrew Sullivan adds:
But how far do you go? Should a Catholic caterer, for example, be able to refuse to provide food for a second marriage? My own view is: yes. But then I'm a libertarian in many ways. I see protecting religious freedom in the civil sphere as a core principle. And by exposing such religious prejudice so baldly, and allowing the market to disadvantage the bigoted, we may even help jump-start the conversations that will eventually persuade people that they're wrong.
I don't know if I would go as far as he does, but I like the point he makes.
I have already argued that our secular government should treat homosexual and heterosexual individuals, and the recognition of their unions, the same. That does not, however, settle the moral/religious issue, and it should be left to each individual and religious group to decide for themselves.
4 comments:
Without addressing the substance of the issue of homosexual marriage, here are my 2 cents:
If a person of faith opens a business, then that business should be treated the same as any other business - secular or otherwise. The corporate form exists to provide certain state-ordained protections to business owners - advantages with respect to taxes, capitalization and liability. In exchange for those advantages and protections, businesses and business owners must submit to the state-mandated requirements of their chosen corporate form and any attendant state regulation. Its a trade-off.
Now, I consider myself a person of faith and also a strict separationist. For me that means the following: (1) the state should refrain from involvement in matters of the Church or individual faith: and (2) Churches and people of faith should expect no special treatment when they engage in secular activities. In short, when a Church or person of faith pursues commerce, the the rules of the secular commercial world will apply to those activities. There can be no special treatment for commercial publishers, photographers, florists, nor ceremony/reception venues just because they are Christian. If you offer it for sale, you open it up to state regulations regarding commerce. How this affects the individual is left up to the individual's own conscience. The faithful business owner can either subordinate her faith to the rules of the of the secular commercial world, or subordinate her commercial ambitions to her faith. In either case, there should be no expectation that the secular commercial world or the state cares one way or the other.
So if a jurisdiction mandates that commercial discrimination against homosexuals (or races or genders or ethnicities etc.) is illegal, a commercial enterprise (or a christian/church acting as a commercial enterprise) will be measured against the law of its jurisdiction, without regard for whether its owners or shareholders are people of faith. People of faith must then conduct themselves in the commercial world according to their own faith and conscience, and be willing to accept the commercial and legal consequences. I think this certainly leaves the decision to the individual or religious group to decide for themselves.
For a doctor, you sure write like a lawyer.
If my comprehension of your comment is correct that as a business the only two acceptable choices are to follow the law as you interpret it or close shop, then I agree.
However, I believe the point is not on whether or not to follow the law or expect equal treatment under it. Instead, it is a question of what makes good law. Should anti-discrimination laws exist if they hinder people from their (constitutional right to) free practice of religion?
My view is that anti-discrimination and pro-discrimination (affirmative action) laws are, on the whole, bad laws. I am sympathetic to the argument that they served a very important purpose in the history and development of America, but hold that as they exist today, they tend to create more problems than they solve.
For every photographer, cake maker, and caterer that doesn't want to offer their services for a homosexual wedding, that creates a market opportunity for those that will. That is the great thing about a pluralistic and entrepreneurial society, and government should get out of the way.
I think we are close to agreement on this matter - so our work is done here. On to the next insoluble problem, K?
Actually, I would add one further comment - my view is colored by my reading of the Constitution. The Constitution doesn't necessarily give We the People an affirmative right to practice religion as we see fit. Instead, the First Amendment is a "negative" right - it prohibits Government intrusion into the realm of the divine. I'll quote it to prove my point:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
So, by its own text, Amemdment I isn't so much a protection of free expression as it is a prohibition against Congressional entry into matters of faith. Essentially, the framers are saying: "Look Congress, so long as you're in the business of drafting laws, you'd better make sure your laws aren't directed to impact the free expression of faith." However, laws of universal application that have an incidental impact on liturgical groups are absolutely permissible, so long as the universal application isn't merely pretext for an underlying intent to directly impact the Church. Typically, anti-discrimination laws are laws of universal application - the fact that they happen to impact people of faith is merely incidental and in no way related to Congressional regulation of religious expression. By contrast, if Amendment I were an affirmative right, it would effectively condone any religious expression, and exempt some criminal behaviors from prosecution so long as they were simply a "free expression of religion." The framers were particularly prescient in drafting Amendment I (thanks in no small part to the Rhode Island delegation who had been greatly influence the Baptist Roger Williams). The negative wording of Amendment I was not accidental.
Turning now to the issue of what makes good law, I would say we all have representatives. It is incumbent upon all citizens to let representatives know when government policies are undesirable. This is, after all, our government. Of course, I feel strongly that there are times when laws must be made to counteract blatant social wrongs. The matter of what social wrongs warrant corrective action is simply a matter of a particular person's world view.
The "negative" language is a critical distinction, but please allow me to make a further distinction.
I have been guilty of using the term "negative rights" in the past, but a better choice would be "negative powers." The Constitution's amendments restrict governmental power so that individual "natural" rights are protected. In my perspective, and I believe that of the Founders', the government can not grant any rights since all rights are natural and God-given.
This recognition of natural rights was a product of the (good) Enlightenment and its self-imposed restrictions granted great legitimacy to the American experiment.
Post a Comment