Review of “Same-Sex Marriage and Religious Liberty: Emerging Conflicts” Part II

Posted: December 03, 2008
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same-sex_marriage_and_religious_liberty.jpgIn Part I, I said I would devote two articles to this important book. Because of the dramatic change in the political atmosphere caused by the 2008 presidential and congressional elections, I now think that three articles are necessary. This one, Part II, takes up the chapters by Robin Fretwell Wilson and Chai  R. Feldblum, whose proposals were made when a quite different political situation was in place. Part III will consider the chapters of Charles R. Reid and Douglas Laycock and offer final reflections. Wilson  (“Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context,” 77-102) explores dilemmas facing churches, clergy, state officials, and private individuals who in conscience can neither support nor participate in same-sex marriages (80). An advocate of such unions, Wilson believes that demand for them will trigger a “torrent of litigation” that legislatures should deflect with accommodations as they did after Roe with respect to abortion with health care services (80). Note her narrow focus: support of and participation in same-sex unions. Because of this narrow focus Wilson ignores most of the serious threats to the exercise of religious liberty that Stern had identified in his opening essay, e.g., the right to teach and publish articles that same-sex unions are invalid and illicit (see Part I).

She thinks “the possibility of a church (as opposed to a religious organization) losing its federal tax exempt status may be remote in the current political climate [emphasis added],” but admits that churches “are not wholly exempt from the IRS reach…” This possibility in fact “cannot be ignored….churches and religious groups have reason to worry” (89). Even at the time Wilson wrote, what she had to say was not too encouraging for the protection of some First Amendment rights. Moreover, the “political climate” during the Obama administration is certain to worsen in this area.  I will consider the significance of this below.

Wilson thinks that lessons from the healthcare conscience clauses [e.g., the protections afforded health care persons, including nurses, doctors, medical schools by the Church and Weldon amendments after Roe; see 85-86] can help avoid clashes over refusal to support or participate in same-sex unions if state legislatures act to protect the right to refuse on the part of churches, clergy, state officials [justices of the peace], and even private individuals [florists who might refuse to supply flowers for same-sex unions] (94-99). If a state official asked to solemnize a same-sex marriage refuses, “states may conclude that if there is another celebrant in a specified time period or geographical area who will marry the couple, the objecting celebrant should be allowed to refuse.” If not, “the denial is tantamount to a denial of access to marriage” and states might then be forced to choose between barring conscientious refusals entirely or providing a hardship exception for the objecting clerk. She suggests ways that states might provide such an exception (99-100). Nonetheless, she admits that if the action taken against Catholic Charities in Massachusetts after mandating adoption for gay couples is any indication “policy makers will opt for a winning solution for same-sex couples and a losing one for those who oppose such unions on moral and religious grounds” (101-102).

Now back to the “political atmosphere” as changed by the recent election. We need to remember that early in his campaign Obama promised Planned Parenthood that ‘the first thing I'd do as President is sign the Freedom of Choice Act' (FOCA). Obama became a co-sponsor of the Senate version in 2007. The purpose of FOCA is to codify Roe v. Wade, invalidating every restriction on abortion at least up to the stage of viability. It thus seems to me that the Church and Weldon Amendments to which Wilson appeals to protect the “conscience rights” of medical personnel, including medical schools, to refuse participation in abortion (see below) will be of little avail in the years ahead. I likewise think that Wilson’s suggestions for protecting the right of conscientious objection to abortion and to same-sex marriage, even given her extremely narrow focus, will not be adopted so long as Obama is president and legislators favorably disposed to the “liberties” of domestic partners and same-sex couples are dominating forces in Congress and the various states.

Feldblum (“Moral Conflict and Conflicting Liberties,” 123-156) distinguishes between an “identity liberty,” (e.g., the liberty of a gay couple to have sex and to marry), and a “belief liberty,” (e.g., the liberty of a Christian couple to refuse to rent rooms either to cohabiting unmarried heterosexual couples or to cohabiting homosexual couples) (123-124)—and whether a belief liberty stems from a religious or secular source is irrelevant (129-130). She thinks a “serious conflict exists between laws intended to protect the [“identity”] liberty of lesbian, gay, bisexual, and transgender (LGBT) people so that they may live lives of dignity and integrity and the religious beliefs [a “belief” liberty] of some individuals whose conduct is regulated by such laws” (124-126).

She believes, correctly in my judgment, that we must admit that moral assessments  underlie civil rights laws. The claim that it is not for the government to decide moral issues, like same-sex marriage and LGBT sexual activity, she judges to be false. Passage of a law based on a moral assessment different from one’s own can burden his “belief identity” if this law requires “that an individual act, or refrain from acting, in a manner that the individual can credibly claim undermines his or her core beliefs and sense of self” (130-135).

Feldblum acknowledges that “belief liberty” “could be assumed under identity liberty,” and is often conflated with rights protected by the First Amendment (140).  She thinks that analyzing “belief liberty” and “identity liberty” under the Due Process clause of the Fifth and Fourteenth Amendments—as Justice Souter did in Washington v. Glucksburg—rather than under the First Amendment will allow us to order our priorities and that if we do so we will discover that “identity liberty” trumps “belief liberty.” Using this approach she claims that “If the ‘justifying principle’ of the legislation is to protect the liberty [=identity liberty] of LGBT people to live freely and safely in all parts of society, it is perfectly reasonable for a legislature not to provide any exemption [based on a “belief liberty”] that will cordon off a significant segment of society from the nondiscrimination prohibition” (149-150). Exemptions for business owners, service providers, employers, etc. would leave LGBT people “vulnerable to surprise discrimination” (153). Thus “society must come down on the side of protecting the identity liberty of LGBT people,” and the reasons given by the state for doing so must reflect the public good. She claims that “ensuring that members of the public who have a morally neutral characteristic will be able to live without fear of or vulnerability to discrimination based on that characteristic certainly seems to be a reason that reflects the public good” (152-153).

Remarkably, Feldblum thinks some “limited exceptions” are possible. The first concerns “enterprises engaged in by belief communities…specifically designed to inculcate values in the next generation (schools, day care centers etc).” She thinks that a subset of such enterprises should be exempted if they meet the following criteria: “the enterprise must present itself clearly and explicitly as designed to inculcate a set of beliefs; the beliefs must be clearly set forth as being inconsistent with a belief that homosexuality is morally neutral, and the enterprise must seek to enroll only individuals who wish to be inculcated with such beliefs” (154; emphasis added). The second concerns leadership positions in such enterprises, especially those religiously affiliated, e.g. hospitals, adoption agencies etc. “Such leaders must be able to articulate the enterprises’ beliefs and values” (155). While it is “essential that we not privilege moral beliefs that are religiously based over other sincerely held core beliefs….we should do the best we can…to protect both identity liberty and belief liberty to the greatest extent possible” (156).

Feldblum’s challenging essay rests on the assumption that LGBT people have a right to marry equal to that of heterosexual couples and that their sexual activity ought not only to be decriminalized but acknowledged as just as morally good as heterosexual marital acts. It also assumes that legally acknowledging this and protecting the identity liberty of LGBT people serves the public good. Both these assumptions can be shown to be false but I cannot do so here. Note that her “exemption” for religious schools (and this embraces grade and high schools, colleges and universities) requires that “only individuals who wish to be inculcated with such beliefs be enrolled,” and this is surely not true of Catholic institutions of this kind today.  A critical analysis of her essay, in my judgment, ought also invoke the difference between a “liberty right” and a “right in the strict sense,” a critically important distinction well described by John Finnis in his discussion of “Hohfeldian” rights in his Natural Law and Natural Rights.

Finally, the “limited exceptions” Feldblum defends may well be most difficult to carve out in the new “political climate.”