Gay marriage and the eclipse of religious liberty

Ever since the court handed down its DOMA decision yesterday, it has become increasingly clear that we are one lawsuit away from gay marriage being ensconced as a Constitutional right. My hunch is that such a lawsuit will come sooner rather than later, and that the matter could end up before the Supreme Court in relatively short order. President Obama is already saying that gay marriages performed legally in one state should be recognized by every other state in the union. This matter will be litigated, and—as Scalia noted in his dissent—that other shoe is going to drop.

In any case, the Supreme Court has led us to the precipice of legal gay marriage in all fifty states. As gay marriage moves forward, there is a real question whether proponents of gay marriage will allow any legal accommodation for the consciences of those who hold marriage to be the union of one man and one woman. Observant Christians, Jews, and Muslims would all have religious reasons for defining marriage in the traditional way, but will their religious liberty be respected as gay marriage becomes the law of the land?

We have already seen that private business owners such as bakers and florists have been sued by their state governments for failing to provide their services for gay weddings. We’ve also seen Catholic Charities have to leave Massachusetts for refusing to provide adoptions for gay couples. In none of these has there been any legal accommodation for the deeply help religious beliefs of traditional marriage supporters. These cases are already cropping up across the country, and we can imagine countless other conflicts that may arise. What if a Christian university were to decide to limit its married student housing to heterosexual couples? Will there be any accommodation for this under the new regime?

The more I have read, the more I have become concerned that very little accommodation will be forthcoming. Proponents of gay marriage are not interested in protecting the religious liberty of traditional marriage supporters. As Ross Douthat has pointed out:

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters

Yet there is very little evidence of “magnanimity” on the part of gay marriage supporters. On the contrary, there is evidence that many of them would like to see traditional marriage supporters get their comeuppance. A scorched-earth policy may very well be in the offing with traditional marriage supporters getting the biggest burn. Will there be room for compromise? About a year ago, Robert George predicted that no compromise will be allowed by gay marriage supporters. He writes:

The fundamental error made by some supporters of conjugal marriage was and is, I believe, to imagine that a grand bargain could be struck with their opponents: “We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type. Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them.” There was never any hope of such a bargain being accepted. Perhaps parts of such a bargain would be accepted by liberal forces temporarily for strategic or tactical reasons, as part of the political project of getting marriage redefined; but guarantees of religious liberty and non-discrimination for people who cannot in conscience accept same-sex marriage could then be eroded and eventually removed. After all, “full equality” requires that no quarter be given to the “bigots” who want to engage in “discrimination” (people with a “separate but equal” mindset) in the name of their retrograde religious beliefs…

There is, in my opinion, no chance—no chance—of persuading champions of sexual liberation (and it should be clear by now that this is the cause they serve), that they should respect, or permit the law to respect, the conscience rights of those with whom they disagree. Look at it from their point of view: Why should we permit “full equality” to be trumped by bigotry? Why should we respect religions and religious institutions that are “incubators of homophobia”? Bigotry, religiously based or not, must be smashed and eradicated. The law should certainly not give it recognition or lend it any standing or dignity.

Can we really expect the sexual revolutionaries to be magnanimous toward those they regard as bigoted? Probably not. It’s probably even less likely now that the Supreme Court’s majority opinion in the DOMA case renders a similar moral judgment upon traditional marriage supporters. Why would anyone want to be magnanimous toward those who seek to “demean,” to “impose inequality” and a “stigma” on gay people, to deny gay people “equal dignity,” to treat them as “unworthy,” and to “humiliate” their children? That’s how the Supreme Court describes traditional marriage supporters. As that opinion moves into the cultural mainstream, it’s difficult to imagine why the majority would make accommodations for the consciences of those they regard as bigots.

What does all of this mean? It means that Christians and other traditional marriage supporters need to direct great energy to obtaining every religious liberty accommodation possible while there is still time. It may be that the moment is passing us by, and that makes the matter all the more urgent.

It also means for Christians that we need to be ready for a new reality. We need to be ready to love our neighbors and our enemies and to bear witness in a culture that is increasingly hostile toward us. Private citizens may someday face fines and other penalties for their convictions on marriage. Our churches may eventually lose tax exempt status. Any number of negative outcomes are possible in the approaching conflagration. Ours will likely be a costly love and a costly witness. But this is precisely the kind of discipleship that Jesus has called all of us to, and it will be worth it in the end (Matt. 16:25).

32 Responses to Gay marriage and the eclipse of religious liberty

  1. Steve Potts June 27, 2013 at 12:08 pm #

    One of the providential benefits of the speed of this cultural revolution is that the legal assaults on those who believe in traditional marriage are likely to come soon. While the country is much more favorable to same-sex marriage than in the past, there are still many people who might find a heavy-handed crack down on individuals, businesses, and ministries to be offensive to the libertarian strain that still exists in American culture (“live and let live”). If the so-called “marriage equality” movement over-reaches, there may be an opportunity to protect religious liberty more thoroughly than a pessimistic (realistic?) view might suggest. Now is the time to pray, teach, love and stand firm.

    • Denny Burk June 27, 2013 at 1:28 pm #

      Right, that’s why it’s urgent that religious liberty tests happen early.

  2. Jason Russell June 27, 2013 at 12:22 pm #

    Denny,

    When we lose our liberties, what’s the possibility that some believers will become a new set of “pilgrims” and we see an exodus from this country? Do you necessarily think that is a sinful approach – that it would be fleeing for comfort? Or is there some justification for it?

  3. Ian Shaw June 27, 2013 at 2:02 pm #

    Jason,

    I actually see Christians not going anywhere. I think there is a movement amongst (sp) younger believers that tells me that they will draw a line in the sand. Younger generations of Christians have realized how different their lives/faith is here in America compared to other nations. We should join their fight and welcome the suffering. We can rejoice in persecution knowing that Christ was first persecuted/suffered for our sake while we were still sinners.

    • Lauren Bertrand June 27, 2013 at 6:42 pm #

      Jason Russell…wow. I guess it really has come around full circle. It was only eight years ago, when Dubya was re-elected, that liberals across the country investigated the possibility of visas to Canada. Did any of them really follow through with their threats? Not many. I certainly hope the conservatives take the high road in this case–at least more than the liberals did. And, honestly, where are you going to move? Africa? Russia?

  4. Aaron A. Smith June 27, 2013 at 2:06 pm #

    How do you respond to people who say their religious rights are violated for not being permitted to participate in same-sex marriage?

    • Chris Ryan June 27, 2013 at 2:51 pm #

      Say, you’re an Episcopalian who believes in same sex marriage but Texas’ gay marriage ban prevents you from getting married?

      Great question! Some ppl say, ‘Tough luck’. But the time is coming when people will be able to practice their religion as they see fit.

  5. Ian Shaw June 27, 2013 at 2:37 pm #

    Aaron-can you give an example?

    • Aaron A. Smith June 27, 2013 at 3:18 pm #

      Members of the Metropolitan Community Church, and many members of the Evangelical Lutheran Church in America may say their religious liberty is violated by not being permitted to participate in same-sex marriage.

      • Chris Ryan June 27, 2013 at 8:34 pm #

        It is. Their religious liberty is being violated.

  6. Chris Ryan June 27, 2013 at 2:45 pm #

    I’m glad you posted on Douthat’s piece, Denny. Even though he undermined his own point, I think he’s right that Christians are best served by negotiating Religious Liberty exceptions now rather than later. The tide recedes before the tsunami and its entirely likely that the LGBT community & progressives will adopt a “scorched earth” policy if, in fact, the Right makes a bitter struggle out of this. People like Rush Limbaugh & Karl Rove have made careers out of demonizing gay people. Karl Rove rode that demonization all the way to the White House. So, yeeeeah gays might not be magnanimous if they get more of the same.

    As a fundamentalist Christian who supports the civil rights of gays to marry even if I think homosexuality is unquestionably sinful, I hope that Christian Conservatives seek these accommodations at once. We should be discussing these matters with people like James Bradshaw, who frequently posts here & has a commitment to free speech.

    There are lots of profound questions of what Religious Liberty actually means in this new context. Can a Christian university discriminate against gays? Or limit married housing to heterosexuals? Certainly not if they accept public money. Perhaps not even if they don’t.

    But if we all seek common ground in 1st Amendment protections, I’m sure we’ll find it. Unfortunately, I tend to think that the Right will dig in & that the gays & progressives will pursue a scorched earth policy. That’s what what happens when we let Hubris get in the way of Witness.

    • Steve Potts June 27, 2013 at 3:42 pm #

      Do you have specific examples of Karl Rove or Rush Limbaugh demonizing gay people? Do you consider opposition to gay marriage “demonizing” gay people? I would argue that some gay rights advocates are the ones really demonizing their opponents (example, Dan Savage; attacks on Tim Tebow, Rick Santorum, etc…).

      • Chris Ryan June 27, 2013 at 8:19 pm #

        I don’t consider opposition to gay marriage demonization. Many of the ppl here oppose gay marriage but no demonization comes to mind.

        Certainly there are progressives & feminists who demonize Christians, and that ain’t right. But over the last 12 yrs I’ve seen much bigger & much louder demonization coming from the Right than from the Left.

        In terms of specific examples of Rove’s and Limbaugh’s demonization, there are more than I can count, but 5minutes Googling will give you plenty. I’ll give you one: Limbaugh equated homosexuality with pederasty just a few months ago. Can’t we all agree that Limbaugh is a clown, and a jerk? I mean this is the guy that calls Obama, “Barack the Magic Negro”. You may or may not think that’s a bigoted thing to say, but its certainly a jerk thing to say.

        • Akash Charles June 27, 2013 at 9:54 pm #

          i can understand that the right also demonizes but more than the left??

          when media / papers etc are pretty much controlled by feminists . I have a feeling that you only watch Fox News that is why you think the right demonizes more

  7. Ed Murray June 27, 2013 at 4:01 pm #

    Who loses in all of this…
    Everyone who is unemployed:(

    • Akash Charles June 27, 2013 at 9:58 pm #

      they deserve it, they voted for it

      fact is currently countries with right wing policy are the ones with lower unemployment- in OECD as well as non OECD countries Germany, New Zealand Australia ( the left wing party is more to the right then the dems!)

      Asian nations who are freeing up markets are seeing living standards improve along with low unemployment compared to the eighties when they were all about big government.

      this is not saying that right wing policy works always but at the moment it is in 5 years it may not

  8. Michael Lynch June 27, 2013 at 4:19 pm #

    For me, this is almost more important than the SCOTUS decisions: http://newyork.cbslocal.com/2013/06/27/new-jersey-senate-passes-ban-on-conversion-therapy-for-gay-youth/
    What will happen to pastors who council their sheep with regards to this sin? It’s only a matter of time before Bible-believing churches are classified as hate groups.

    • Lauren Bertrand June 27, 2013 at 6:48 pm #

      Michael–
      I fully agree with you on this. I see the abolition of conversion therapy as a serious violation of First Amendment rights. I don’t agree with this therapy, and I would never recommend it to anyone, but I fully think we need to respect the rights of those who still seek this therapy–and I think we also need to respect the rights of parents to send their children to this therapy, even if I agree with it even less in that context. Outlawing unconventional medicine and therapies could easily result in the abolition of meditation centers, acupuncture, yoga, tarot reading, and eventually, various religious faiths altogether–and even if they start with Scientology (another pretty dubious practice IMO), who’s to say that’s where they’d stop? A very slippery slope.

    • Chris Ryan June 27, 2013 at 8:32 pm #

      I don’t agree with this law either Michael, but there’s a great distinction between banning/regulating preachers & banning/regulating DRs: Preachers have 1st Amendment protection.

      DRs have limited 1st Amendment protections. Medical practice is regulated by the state. DRs are not free to do whatever they want. And we regulate their speech all the time. TX requires abortion DRs to say that abortion increases the risk of breast cancer (even though that’s untrue). Many states require abortion DRs to tell women that abortion increases the risk of suicide (even though that’s untrue). Many states also require abortion DRs to show women pictures of their fetus (even if the DRs thinks this traumatizes the mother). All these things are ways of regulating the speech of DRs b/cs society has chosen to protect fetuses. In CA and in NJ society thinks that reparative therapy harms ppl & leads to suicide, and they’re choosing to protect ppl also. I haven’t seen the science on this charge but I suspect that its abt as valid as the science tying abortion to suicide.

      I’m a 1st Amendment libertarian so I don’t think the state should regulate the speech of DRs ever, but thanks to abortion jurisprudence and other law, we have a long legal history which says that the state can, indeed, regulate what DRs say–including preventing them from saying something at all.

      • Akash Charles June 27, 2013 at 10:06 pm #

        actually it does increase suicide risk . ” traumatize the mother!!! vs your idea of hiding and preventing her from seeing her beautiful child, after you saturate her with the “its better to murder the child propaganda”

        ah so you saying because Christians support life and not give individuals the right to choose to murder they deserve to be silenced ?!!!

        anyways silencing christian’s has never worked historically God always wins and has promised he will win and love those poor babies who you so enthusiastically want killed

        Personally though I believe christian should invest their resources into assisting women in difficult conditions rather than banning abortions with no assistance
        and many christian’s who vote against abortions actually help such women, so women will go them instead of Planned Parenthood where murder is what they brainwash women into doing

        since your all about equality why not give men the right to murder too??. It is their child too . I am not surprised men do not want to look after children considering that they have no rights over the child- single women deserve to be single really

  9. James Bradshaw June 27, 2013 at 10:52 pm #

    I don’t see any risk to freedom of speech resulting from this decision. The most extreme of anti-gay groups (Westboro Baptist) has the freedom to preach against Jews, gays and pretty much everyone else. The same Supreme Court that decided against DOMA has found in their favor.

    Now, I think there’s a question of the rights of small business owners regarding their ability to reject services when they feel they would be complicit in something they believe is immoral.

    From a religious perspective, when is someone actually “complicit” in a moral offense? Is it the person to whom they’re providing services? Is it the nature of the occasion/event?

    You also have to balance the rights of consumers with the rights of those providing services to them. These aren’t easy questions. To suggest the law must favor one or the other at all times will certainly result in injustice towards someone.

  10. Ian Shaw June 28, 2013 at 9:48 am #

    Aaron, the ELCA is an apostasy. They changed their message as an attractional way to get more people into their church. Call it for what it really is. If you water down the message, what are you truly teaching. Good pastors don’t build bridges with wolves, they shoot them (metaphorically).

    • Aaron A. Smith June 28, 2013 at 2:03 pm #

      That doesn’t answer the question I asked. One could call any religious organization an apostasy. The accused organization could still claim their religious liberty is violated.

    • Chris Ryan June 28, 2013 at 9:14 pm #

      I can’t tell from your reply if you’re saying that so-called apostates are entitled to or not entitled to religious liberty?

      And, if apostates aren’t entitled to religious liberty, and who gets to decide whose an apostate or not?

      • Aaron A. Smith June 28, 2013 at 10:27 pm #

        I am not calling anyone an apostate. I am asking how one who claims that the legalization of same-sex marriage violates his/her religious liberty should respond to someone who states that the legal denial of same-sex marriage violates his/her religious liberty.

        • Chris Ryan June 29, 2013 at 2:25 pm #

          Sorry, Aaron, my question was directed at Ian not you.

  11. Linda Jackson June 30, 2013 at 3:00 pm #

    Laws based on Christianity are going out the window. Religion Representatives against gay marriage have no way to do any other legal action because THEY ARE NOT SUPPOSED TO BE THERE TO BEGIN WITH! USA is not a Church!!!

  12. Ted Adams August 18, 2013 at 4:47 pm #

    If Westboro Baptist Church is able to freely express their opinions according to the Supremme Court, then under freedom of speech we all have that right. if an employer would say to me that I could not express my opinion on my own time, And threatened me, then I would sue for the same reasons as Westboro and would win. it is one thing to express opinions on company time and another on personal time. this we all need to think through and counteract the new tyrants of our society. in other words fight in all ways we already have on our side and let go of all things we cannot win at the moment. eventually we will win and Jesus will be glorified. So pick our fights carefully and go with God.

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