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Freedom to marry vs. freedom of religion


by Ken Burrows

In the 7/11/15 edition of the Colorado Springs Gazette, the chair of the El Paso County Commission, Amy Lathen, argued that the legalization of gay marriage represents an assault on religious freedom, going so far as to speculate whether a Christian pastor who refuses to perform a gay marriage based on his church’s stand against it will be hauled off to jail, or if religious leaders will be silenced by government for preaching in favor of traditional marriage.

This paranoiac mood has been joined in by other critics of the recent Supreme Court’s legalization of gay marriage, such as GOP presidential candidate Mike Huckabee saying the ruling “criminalizes Christianity” and Tim Wildmon of the American Family Association calling it a “spiritual 9/11” that could bring God’s wrath down on the country.

Lathen (and, it would seem, many others) apparently did not read, or chose to ignore, that part of the Supreme Court’s majority opinion in Obergefell vs. Hodges, in which Justice Anthony Kennedy specifically stated “the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Constitutional criteria

What was also notably missing from Lathen’s commentary was any mention of the constitutional criteria undergirding the Court’s majority opinion. That opinion noted that “fundamental liberties . . . extend to certain personal choices central to individual dignity and autonomy,” and courts must exercise judgment “in identifying interests of the person so fundamental that the State must accord them its respect.” “The right to personal choice regarding marriage,” the ruling continued, “is inherent in the concept of individual autonomy.” And laws that outlaw same-sex marriage “burden the liberties of same-sex couples, and they abridge central precepts of equality.”

Liberty. Autonomy. Equality. Dignity. These are serious and fundamental rights and traits that are apparently viewed as dismissible by those waving a “religious freedom” banner against same-sex marriage. Lathen made repeated references to religious beliefs as justification for limiting marriage to one-man-one-woman, noting that traditional marriage is “based deeply in many religious beliefs” and the common traits of traditional marriage “are the result of the cornerstone of God’s creation.” Her one oblique reference to equal rights was to aver that legalizing same-sex marriage “is not really about equal rights as much as elimination of the institution of marriage.” Never mind that, as Justice Kennedy pointed out, it was “the enduring importance of marriage” that motivated petitioners’ quest in Obergefell to have marriage rights in the first place.

The “freedom” to limit freedom3

As with many other critics of the Court’s ruling, the stance expressed by Lathen goes beyond mere concern for preserving religious freedom and attempts to exploit that “freedom” to impose a religiously favored construct of marriage onto the population as a whole. No wonder the concepts of equality and liberty were passed over. In the view of critics, religion trumps these. As an indication of how dominionist this thinking goes, consider a 2009 document titled “The Manhattan Declaration,” written by a group self-identified as Orthodox, Catholic and Evangelical Christians, that said it is “the duty of the law” [emphasis added] to recognize and support traditional marriage as an “institution ordained by God.” (Ironically, even when calling for legal enforcement of a selected religious viewpoint, this same document said “immunity from religious coercion is the cornerstone of an unconstrained conscience.”)

Such attempts to impose a favored religious doctrine about marriage onto all gives sacramental prerogatives legal preference over secular rights. This is as un-American as it is uncharitable. It’s as though any harm to people from these assaults on equality and restrictions on fundamental choices is to be accepted as necessary collateral damage in the battle to protect “religious freedom.”

Responsibility to respect

This debases religious freedom while demoting civic freedom. The fact is, no freedom is absolute, and all come with a responsibility to respect the rights and welfare of fellow citizens. Freedom of speech does not include the freedom to advocate mass murder. Freedom to bear arms does not include the freedom to carry an automatic weapon into a city council meeting. Should one’s practice of religious freedom on a personal level grant license to engage in bias and coercion on a public level? The core principle of religious freedom is the right to believe and practice the faith of one’s choosing. At no point does that freedom morph into a permit to illegally discriminate in the name of religion. If we must protect religion’s freedom, we must also protect citizens’ freedom when it is imperiled by religion.

A safeguard different from the rest

In considering these issues, we should take note that among the attributes for which we enact safeguards for equal rights, one is fundamentally different from the rest. Among age, sex, religion, race, color, national origin, disability, or sexual orientation, religious affiliation is the only attribute that is voluntary. People are born with ethnicity, gender, and color. No one is born Baptist, Muslim, or Catholic.

Should the safeguards we’ve established based on things we involuntarily are be subordinated to a safeguard based on religion that we voluntarily choose? Also, because they do not all have the same tenets, which of the chosen religions gets to rule? Christianity, for instance, is dominant but not universal.

It becomes clear that in the public sphere, beyond the confines of its own congregation, religion cannot and should not be granted the only or final say on public policy. Not just because religious belief is individual and voluntary but also because subjecting individuals’ freedom and equality to religious dogma dissolves the distinction between church and state. It puts sectarian tenets in conflict with civic rights and, indeed, creates a zero sum game where the second gets sacrificed to the first. While private piety deserves protection, public pluralism should not be piety’s casualty.

Religious tenets vs. civil rights

The separation is vital. Jacob Sullum of Reason magazine recognized this when he wrote: “A sacrament requires God’s blessing, not the government’s. Civil marriage is not synonymous with ‘the sacred institution of marriage.’” In a similar vein, Reverend Peter Gomes of Harvard University’s Memorial Church drew a distinction between the church addressing marriage for its congregations versus attempting to subordinate citizens’ marriage rights to the church’s own tenets. He said such rights should never be subject to the holdings of a majority faith.

In this regard, religious convictions should also not be allowed to carve out exceptions to laws that proscribe discrimination and ensure equality to the citizenry as a whole (e.g., commercial businesses, housing, health services provision, counseling services, etc.). Religious organizations receiving taxpayer dollars should similarly have to abide by such nondiscrimination laws.

But it is equally true that within their own privately supported institutions, constituencies, and practices, religious entities should enjoy security in abiding by their sacred convictions. Here they bind only those who consent to be bound. This is where “religious freedom” is due the protection the Obergefell ruling ensures. And religious spokespersons should also remain free to publicly advocate for their beliefs. Free speech demands such freedom of expression, which is distinct from suppression of others’ rights. Save for exceptions that violate law itself, even white supremacists and hate rhetoricians like those at the Westboro Baptist Church are not restricted in what they say. “Dogma supremacists” deserve the same freedom of advocacy.

No deference by default

The effort to limit marriage to one-man-one-woman was always for the most part a campaign to extend religious legalisms beyond the church’s own faithful and impose onto all citizens a definition of marriage that conforms to faith dictates, regardless of individuals’ varying beliefs about marriage. The Supreme Court has recognized the injury to equality and personal freedom, and the demeaning marginalization, this caused. By advancing marriage equality, it has reasserted the vital separation of secular from sacramental when it comes to marriage and affirmed fundamental equality.

But as genuinely American as this is, as egalitarian as this is, there are those who still seek to make “religious freedom” a cover for limiting nonreligious freedoms. History repeats itself. In the past, churches supported making miscegenation illegal. Before and after the Civil War, churches defended slavery as biblically rooted. In colonial days, majority denominations banned people of minority faiths from holding office. The lesson is clear. Religion is formed by human beings, susceptible to human error, and not immune to harming others in its name. In a free America, the citizenry as a whole does not owe it a presumption of accuracy, an unfettered license to impose its views, or deference by default.

Certainly freedom of religion in principle remains a hallmark of our history. We can guarantee it will endure and be a positive force, but only if, when its adherents seek to abuse that freedom with religious imposition, we are able to guarantee freedom from religion as well.

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