Religious Liberty and Same-Sex Sex

Marriage isn’t an obscure practice. I bet you know married people even if you aren’t married yourself. Since marriage (the monogamous kind anyway) has always been defined as a relationship between a man (the husband) and a woman (the wife), it’s understandable that many of us are having trouble with the new definition. 

It’s also understandable that some people, including blinkered members of the Supreme Court, are resisting same-sex marriage, arguing that it’s just too weird or that the Constitution doesn’t require legalizing it (their argument being that “equal protection of the laws” doesn’t necessarily mean equal protection of the laws). 

But there’s another reason being offered against same-sex marriage that I’m having more trouble understanding. Here’s the relevant language from Justice Thomas’s dissent (which begins at page 78 of this file):

… the majority’s decision threatens the religious liberty our Nation has long sought to protect….In our society, marriage is not simply a governmental institution; it is a religious institution as well….Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples….

Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths” …  Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice [pp. 14-15 of the dissent].

Thomas’s concern is that religious liberty includes “freedom of action in matters of religion” and that legalizing same-sex marriage will lead to lots of situations in which people won’t be allowed to practice their religion as they wish. He doesn’t provide any examples, but claims that demands will be made to “participate in and endorse” marriage-related activities to which people object on religious grounds. In support of his position, Thomas refers to the amicus curiae (friend of the court) brief submitted by the Seventh-Day Adventist Church.

The Church anticipates problems of two kinds:

(1) Churches and church-affiliated organizations won’t be eligible for certain benefits if they discriminate against same-sex married couples. For example, church-run adoption agencies might lose their state licenses if they refuse to place children with same-sex couples. Church-run homeless shelters could lose government grants. Religious colleges might lose their accreditation or their access to government financial aid programs. Likewise, individual employees might lose their jobs or be disciplined if they refuse to provide services to same-sex couples.

(2) Individuals will bring lawsuits against churches and church-affiliated organizations that discriminate against such couples, charging illegal discrimination. Religious institutions might be subject to public accommodation laws that require businesses to provide products and services to anyone who can pay. Same-sex couples denied student housing might sue. Employees in same-sex marriages might sue religious organizations in order to keep their jobs.

In these various cases, the Church is arguing that anyone who conscientiously objects to same-sex marriage on religious grounds should have the right to discriminate against same-sex couples. On the face of it, that sounds illegal. But it might not be. An article in The Atlantic explains why:

No law, state or federal, forbids “discrimination” generally. Employers, landlords, and businesses “discriminate” all the time—on the basis of low credit ratings, bad references, and poor employment histories, among other factors. Any type of private discrimination is legal unless a state or federal law specifically forbids it….

Thus, a civil-rights statute has two key parts. The first lays out the traits it governs, the forbidden grounds—for example, … “race, color, religion, sex, or national origin.” To state a claim, plaintiff must show that he or she has been treated less favorably than others who differ in one of the covered traits, and that the unfavorable treatment was because of that trait….

Then the law specifies what activities it covers, and usually offers certain exemptions. For example, … the Fair Housing Act bars a landlord from refusing to rent to anyone because of “race, color, religion, sex, familial status, or national origin.” But it allows religious organizations that own dwellings to favor members of their own sect…

The question, therefore, is where to draw the line between people’s freedom to practice their religion as they see fit and other people’s right to be treated fairly. Religious opponents of same-sex marriage want to draw the line so they can discriminate against same-sex couples in lots of different ways (“we won’t let you attend our college”). Supporters of same-sex marriage want same-sex couples to be treated like other married couples.

Maybe everyone would agree that a minister who thinks same-sex marriage isn’t sacred should not have to officiate at a same-sex wedding. It makes some sense to me that a church-run adoption agency might not want to give a child to a same-sex couple (a Catholic charity in Boston apparently shut down their adoption services to avoid doing that — I’m not endorsing their decision — I’m simply saying it’s understandable from their perspective). But it’s hard to believe there are good religious reasons for the many kinds of discrimination the Seventh Day Adventists and other churches apparently want to practice. 

How can it be against someone’s religion to provide counseling to a same-sex married couple? Or give them food or shelter? Or allow them to attend the college you administer? Or buy flowers or a cake from your shop?

The answer, of course, is that those kinds of discrimination aren’t required by anyone’s religion. In this case, claiming to have religious reasons (or “core religious beliefs”) that justify treating certain people worse than others is a way to attack or renounce their sexual orientation. That’s why the phrase “aid and abet” sometimes appears in discussions of this issue. Opponents don’t want to “aid and abet” what they consider to be deviant sexual behavior, as if that behavior were criminal. They somehow think that acknowledging same-sex marriage or providing aid and comfort to same-sex couples amounts to endorsing same-sex sex.

Certainly, many oppose this evolution in the definition of marriage because it’s strange and new. Following religions that are thousands of years old tends to foster conservatism (the kind that honors tradition, not the fake “conservatism” we hear so much about these days). But the real reason same-sex marriage bothers some people so much is that being in a same-sex marriage is public confirmation that a person has same-sex sex. A person can be gay or a lesbian without announcing that fact to their minister or rabbi, or their college administration, or the staff at their local county clerk’s office. But getting married to someone of the same sex delivers a very clear message. You have the kind of sex that really bothers some people. And you’re planning to have a lot of it for a very long time. You aren’t going through a phase. You aren’t going to change your ways with a bit of counseling. So deal with it.

As a religious person, you can react to this new situation in different ways. You can say “Yuck! I don’t like this at all!” and maybe offer some reasons, religious or otherwise. Or you can mind your own business (“let him who is without sin…”). Or be thankful that more people will be getting married, which is supposed to be a good thing. But you shouldn’t use your religion as an excuse for discrimination. Why make life difficult for people who haven’t done you any harm? Their liberties are just as important as yours.

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