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July 6, 2011

Freedom as a Bargaining Chip?

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What role did religious freedom play in the negotiations over same-sex marriage in New York, and what role should it play? During the legislative debate, we talked to religious-freedom expert Robin Wilson, and we’ve since explored the issue on National Review Online with Maggie Gallagher and Princeton’s Robert P. George. But focusing in on how religious freedom played out in the end, Thomas M. Messner, a lawyer and visiting fellow at the DeVos Center for Religion and Civil Society, talks to NRO’s Kathryn Jean Lopez.

KATHRYN JEAN LOPEZ: It’s been said that protections for religious freedom were the key to winning the swing votes on the same-sex-marriage bill in New York. What do you think about that?

TOM MESSNER: If that’s true, it’s regrettable. The marriage debate is first and foremost a debate about the meaning and public purposes of marriage, not a debate about religious freedom. Yes, people on both sides of the marriage debate now recognize that same-sex marriage threatens religious freedom. But the religious-freedom consequences of redefining marriage are a threshold issue of concern to everyone, not an escape hatch for people who would rather avoid difficult issues.
Even if the religious-freedom issues were not on the table, proponents of same-sex marriage would still need to explain why marriage should no longer have any intrinsic connection between children and mothers and fathers and why people who think it should are morally equivalent to racists. Lawmakers would need to squarely confront the core issues presented by genderless marriage, even if threats to religious freedom were not a factor.

In other words, no matter what someone thinks about the merits of genderless marriage, threats to religious freedom from same-sex marriage present serious concerns about redefining marriage. On the other hand, even if same-sex marriage posed no threats to religious freedom at all, the core reasons to support marriage as one man and one woman remain just as compelling and must be addressed.

LOPEZ: But what about people who support same-sex marriage as a matter of policy but have expressed reservations because of the problems same-sex marriage will cause religious freedom? Do exemptions like those in the New York same-sex-marriage bill clear the way for people to support same-sex marriage if they were going to support it anyhow?

MESSNER: No, as other analysts already have observed, those much-touted exemptions leave much to be desired. Consider the case in New Mexico, where a Christian photographer was hauled before the state human-rights tribunal when she conscientiously objected to participating as a photographer in a same-sex commitment ceremony. The New York legislation just enacted appears to do nothing to avert that kind of situation in New York.

Similar concerns have been raised about how a combination of same-sex marriage and nondiscrimination laws threatens the religious freedom of professionals. Certainly many counselors, psychologists, lawyers, and doctors in New York have no religious or moral problem serving homosexual clients. But it should surprise no one if many of these same professionals might conscientiously object to providing services that facilitate or express moral approval of same-sex conduct and relationships. Again, the New York law just enacted appears to do nothing to protect religious and moral conscience in many if not most or all of these situations.

LOPEZ: What about groups like Catholic Charities and other religious social-service agencies that provide adoption and foster-care services? They’ve been forced out of business in places like Massachusetts and D.C. because they conscientiously object to placing children in homes without both a mother and a father. Will they be protected in New York?

MESSNER: It’s not entirely clear from the face of the legislation whether certain religious groups who serve children and other vulnerable members of society will be protected. Maximizing the number of private social-service groups helping the poor and disadvantaged in society seems like a no-brainer, even for people who support same-sex marriage. Unfortunately, although New York lawmakers had a chance to be very clear on this point, they opted instead for confusion and ambiguity.

Given the hostility some activists have shown to groups like Catholic Charities in the past, you can be fairly certain that many of them will take any future opportunity to argue that religious adoption and foster-care agencies objecting to same-sex marriage should be put out to pasture. Obviously, this kind of thing is bad for religiously inspired social action and for the poor and needy people who benefit from it. But if the past is any guide to the future, some activists will blame conscientious objectors for honoring their understanding of truth and morality, not public officials for failing to protect the exercise of religious and moral conscience.

LOPEZ: So if a state is going to redefine marriage, it needs to provide a lot more protections for religious freedom than New York did?

MESSNER: It’s more basic than that. The religious-freedom problems associated with same-sex marriage cannot be completely exempted away. Even if same-sex marriage legislation included every religious-freedom protection recommended by the experts, new fact situations can always arise. Statutory protections enacted today can be diminished and even repealed in the future. And even the strongest legislative protections may be unfavorably construed or misapplied by activist judges.

More fundamentally, however, exemptions fail to solve one of the major reasons same-sex marriage threatens religious and moral conscience in the first place. Same-sex marriage does not simply include more people in the definition of civil marriage; it labels the natural understanding of marriage as a form of irrational prejudice, ignorance, bigotry, and even hatred. In other words, same-sex-marriage laws teach the public that people who view marriage in the natural way are morally equivalent to racists.
Once this idea is embedded in the law, there will be enormous pressure to take it to its logical conclusion by marginalizing and penalizing people who continue to think marriage is one man and one woman. Some of this pressure will come from state sources and some will come from private sources, but in both cases it will find ways through whatever cracks might exist in protections for religious and moral conscience. As Princeton professor Robby George put it in your recent interview with him, “If you ask, ‘What can be done going forward around the country to protect religious liberty?’ the answer is this: Win the fight to preserve the legal definition of marriage as the conjugal union of husband and wife. Period.”

Of course, some people who support religious freedom in this context might argue that legal affirmation of same-sex marriage is inevitable and, therefore, people who spend their time opposing it rather than seeking more robust religious-freedom exemptions are making a tactical mistake. I find this view unpersuasive.

As much as some proponents of same-sex marriage want Americans to believe otherwise, same-sex marriage is not inevitable. If you need proof of this, just look at New York, one of the most liberal states in the country. Despite an incredible investment of financial and political resources on behalf of genderless marriage, the entire debate came down to a few swing votes in an extraordinary legislative situation. Even now, marriage supporters are planning initiatives to reverse the outcome in New York and to increase protections for marriage in states such as Minnesota.

Anyone who thinks same-sex marriage is inevitable obviously hasn’t heard about a little group called the National Organization for Marriage. The same-sex-marriage movement has been a long time in the making and enjoys vast resources and entrenched and fervent support among business and cultural elites. In contrast, NOM, in just a few years, has achieved incredible success in working with a wide range of pro-marriage groups around the country to defend marriage even in deep-blue states such as California, Maine, and Maryland.

Even considering the most recent news from New York, the trend in politics is to shore up protections for marriage. Public officials repeatedly tried to redefine marriage in California, but voters used a ballot measure to define marriage as one man and one woman in the state constitution. Maine voters used a people’s veto to reverse same-sex-marriage legislation passed by their state representatives. Iowa voters awarded early retirement to three of the state-supreme-court justices who imposed same-sex marriage on that state. Nearly 30 states have protected marriage in their state constitutions. Nearly 40 states have protected marriage in their statutes. And a recent nationwide poll by Public Opinion Strategies finds that 62 percent of “middle America” (people without extreme views on either side of the issue) believes marriage should be defined only as the union of one man and one woman.

Considering these facts, it’s difficult to receive the “inevitability” message as an honest and competent appraisal of political realities. Rather, it resembles a calculated attempt to demoralize Americans into giving up on marriage.

LOPEZ: You’re saying that protections for religious freedom don’t justify support for same-sex marriage. But if religious-freedom protections don’t justify support for same-sex marriage, then why should people who support same-sex marriage ever support protections for religious freedom? Shouldn’t people who think marriage is one man and one woman be willing to compromise on marriage in exchange for religious-freedom protections?

MESSNER: The notion that religious freedom is being used as a mere bargaining chip in the marriage debate is deeply troubling. Religious freedom is a vital public value worth protecting regardless of how such protections factor into political calculations designed to promote same-sex marriage or any other legislation.

— Kathryn Jean Lopez is editor-at-large of National Review Online.

First appeared in National Review Online.

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