Universally Honoring a Behavioral Minority Poses Problems

Robin Wilson, a professor of law at Washington and Lee University School of Law, had a commentary that ran recently calling for certain protections for those who object to recognizing a brideless or groomless relationship as marriage.

It's possible to legalize gay marriage without infringing on religious liberty.

Such is the premise of the piece. The problem is, religious liberty is just one of our concerns. In almost every case, if not every case, neutering of state licensing of marriage in the United States has been done against the will of the people of that state. The problem with this is that it is the people of the state who are supposedly issuing the licenses to begin with. When a court usurps that authority from the people, then it is also a concern about representation and how government works at the most basic level.

[The rest is below the fold if you care to read it.]

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. Religious organizations could be affected too. For example, a Catholic university that offers married-student housing might have to rent to married same-sex couples or risk violating state law.

I see this as a larger issue of liberty for property owners, employers, and the freedom of association. In my understanding of rights, a photographer should be able to refuse to be hired for a ceremony for any or no reason. These days, a photographer runs afoul of the law if he says, "No, I will not do your wedding because you're not white," but not "No, I will not do your wedding because you're ugly." Both moves are stupid business decisions, but only one is illegal. And in more and more places, it is illegal for someone to turn down a gig because he or she does not want to participate in what he or she believes is a mockery of something sacred.

In Iowa, the state's attorney general told county recorders that they must issue licenses to same-sex couples or face criminal misdemeanor charges and even dismissal.

Public servants are supposed to do the work of the public. If the people of a state have decided to neuter their marriage licensing, then the office needs to accommodate that. However, I have no problem with an individual being able to refrain. Surely, we do not force observant Muslims to handle pork products when passing out a government-subsidized meal, do we?

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.

This is a good point.

In the Los Angeles Times, there was a response by Alan Brownstein, a professor at UC Davis School of Law.

The more serious problem with Wilson's analysis is that it never considers the impact of religious exemptions on gay and lesbian couples.

In my opinion, religious institutions should be granted an exemption from having to recognize the validity of same-sex marriages most of the time. But at some point, the cost of these exemptions becomes unacceptably high. For example, should a religiously affiliated hospital have the right to deny gays or lesbians the same rights of visitation and decision-making that are provided by law to opposite-sex families?

Good question. Hospitals are a little different from other facilities because someone may be taken there in an emergency or otherwise unable to consent or object.

The basic idea here is straightforward: We can and should work hard to accommodate the rights of same-sex couples and religious individuals and institutions. Doing that right, however, requires government to take account of the actual and legitimate needs and interests of both groups.

I don't like where this is going. It smacks of way too much power and intrusion by the government, especially if it is operating counter to the consent of the governed.

There were also some letters responding to the first piece.

Kevin T. Freeman of Rancho Cucamonga wrote:

Separate cannot be, by its very nature, equal.

Sure it can. For example, we have separate restrooms for men and women. We have separate designations on birth certificates and many other forms. These things are still true, even though I know some of the more radical GLBTQQ activists are trying to change these things.

The famous court decision being paraphrased said things (note: not marriage related) were separate AND unequal, not that things couldn't possibly be separate and equal. Nonetheless, same-sex pairings, either male or female, not the same thing as a bride-groom pairing. This is demonstrated all over the world, every day, and has been through all of human history.

Are gay people citizens or aren't they?

They are citizens, of course, and have (as they should) the same rights and protections as anyone else – no more, no less. That shouldn't change even if two gay people get together.

We have the right to be religious; we do not have the right to impose our religious views on others.

And coincidently, you have freedom of association, but you don't have the right to force us to change our marriage laws to bestow a marriage license upon your different kid of voluntary association.

Why is this different than anything else? Why do some people seem to see the need for a religious exemption in this matter, but not so many others?

Perhaps it is because we're dealing with something so basic and fundamental to humanity – how we perpetuate our society by creating and raising the next generation. I wonder if even a lot of people who are pushing marriage neutering recognize that it is entirely rearranging the fabric of society, and some of them are willing to concede that forcing this into every aspect of our lives is a bit much. I suspect others are willing to provide the exceptions, cynically, because they are counting on it being easier to get their goal of neutering marriage, and then a court will subsequently remove the religious protections later. It's another Trojan horse.

Religious freedom in the United States is not absolute For example, people aren't allowed (strictly speaking as far as the law goes, anyway) to molest children or murder a 20-year-old, even if their religion calls on them to do it. There are certain rights that those who wrote the Constitution saw as basic natural rights that each of us have, regardless of who we are. While the culture was generally nominally Christian, it was inconceivable that one day we'd be having a debate about whether or not two men could be married. But now, we're in a place where we may see the rights and liberties of anyone who doesn't recognize that two men could be married may face some sort of legal sanction.

On the other hand, equal access is not guaranteed to groups, but rather indivuduals. Under bride-groom marriage licensing, access is equal.