Same-Sex Marriage and Religious Liberty: Emerging Conflicts

Edited by Douglas Laycock et al.

Becket Fund for Religious Liberty and Rowman and Littlefield, 2008

330 pages, $34.95

To order: rowmanlittlefield

(800) 462-6420

One of the most antagonistic paradoxes advanced by staunch advocates of abortion and same-sex “marriage” in the name of the “right to privacy” is that, while pretending that their policy choices are about “people being left alone,” they have no scruples about making the rest of society complicit in facilitating those choices, even when some deem them gravely immoral.

Same-Sex Marriage and Religious Liberty: Emerging Conflicts, a thought-provoking book of six chapters by as many authors, examines likely and potential conflicts facing faithful Christians and Jews if (or as several authors believe, when) same-sex “marriage” becomes legal. Once the machinery of civil society is arrayed on one side of this cultural and moral war, what dilemmas are likely to face religious dissenters?

While no one expects clergy to be forced to solemnize these parodies of marriage, are churches that refuse likely to face loss of tax exemption? Even if they do not, will defending against such threats achieve the same end, i.e., cowing the timid, while bankrupting those with more spine? Or will a strategy such as that employed against the Boy Scouts work — cutting the offending group off from civil benefits like free park access or contributions from United Way? One step removed will be church facilities with a quasi-commercial aspect: Can a parish that rents out its hall for banquets and weddings refuse to accommodate Adam and Steve? Even if churches themselves are allowed to be faithful to their convictions, what about ecclesiastical institutions with consciences, like Catholic adoption agencies that will not place children with homosexual pairs or Catholic schools that decline to hire “gay activist” teachers?

What about individual believers? Can a Catholic homeowner refuse to rent his upstairs apartment to two homosexuals his state calls “married”?

Finally, will the only Catholic that now need seek public office be a dissenting Catholic? Will Catholic candidates for public office who believe they need not resign their faith to be faithful Americans be derided as “extremists”? Worse still, will middle- and lower-level Catholic judges, justices of the peace, civil registrars, mayors and the like be forced against their consciences to officiate at these “marriages” or lose their jobs? Will they be expected to put up and shut up, not criticizing the new public order?

And how does all of this square with the First Amendment, which should ensure that believers have the right to believe and act on their faith, but which some federal courts have perverted to mean the former but not the latter?

The half dozen authors in this anthology offer differing viewpoints. Chai Feldblum sounds sympathetic to religious liberty claims in theory but reliably comes down against them in practice. Her essay could be a dress rehearsal for the upcoming series of “Personally Opposed But ... Politicians: The Next Generation.” Charles Reid presents a valuable history of religious influences underlying Anglo-American marriage law. His numerous case law citations attest to a legal tradition that recognized marriage as a divinely ordered estate and not just an institution of the state whose definition is infinitely changeable by legislative enactment or judicial fiat. For all the prattle heard today about the need to respect legal precedent, Reid presents a side of legal history that advocates of same-sex “marriage” would probably rather forget.

My biggest issue with this book is one of perspective: The book “imagine[s] a world in which same-sex marriage is legalized.” One can argue it also simply assumes it, quibbling over possible rearguard responses to that new order. The book never faces the central question Rabbi David Novak elsewhere raises: Is the very legalization of homosexual “marriage” an assault on the religious liberty of believers who, over millennia, formed our culture in a Judeo-Christian ethic?

Unfortunately, I think that Marc Stein’s summary is correct: “The conflicts explored here unfolded in a world without same-sex marriage. ... The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The remaining question is whether champions of tolerance are prepared to tolerate proponents of a different ethical vision. I think the answer will be no. … [T]he impact [of same-sex ‘marriage’] will be substantial. I am not optimistic that, under current law, much can be done to ameliorate the impact on religious dissenters.”

 John M. Grondelski writes

from Bern, Switzerland.