California: Impact on religious liberty

rainbow altar 01It's the sidebar for the main story of the day, of course. And New York Times reporter Jesse McKinley does what you expect a reporter to do, in a story that runs with the oh-so-predictable headline: "Gay Couples Celebrate California Decision; Both Sides See a Fight."

You think?

So the goal here is to have a story that quotes both sides in the other great moral-cultural-religious issue that has dominated the American political scene since the 1960s (give or take a decade). The issue, on one level, is the civil-rights status of people who live public lives as gays and lesbians. The status of bisexuality looms nearby, in a cloud of fog.

But there is another issue closely connected: What are the rights, in terms of free speech and religious liberty, of the people and voluntary associations who continue to hold traditional Jewish, Christian, Muslim, Buddhist, etc., doctrines on the moral status of sex outside the state of marriage, as traditionally defined? I first heard these issues linked in this manner in a church-state seminar way back in 1977.

On one level, the key question is this: Is sexual orientation the same thing, legally, as race, gender, age, religion and other conditions given special protection in American law? Is it illegal to defend traditional religious views on sexuality in the public square? I need to state right up front that I am a professor in a global network of Christian Colleges and Universities, a perfect example of a voluntary association sure to be touched by this legal conflict (which is, of course, linked to doctrinal conflicts as well).

Thus, McKinley tells us:

"Today will go down as a true turning point," said Geoff Kors, the executive director of Equality California, a gay rights advocacy group. "It really is a very powerful message that love trumps hate and hope trumps fear."

But the battle in California is not over. Opponents of same-sex marriage said they had gathered 1.2 million signatures to place a constitutional amendment on the November ballot that would define marriage as between a man and a woman, and effectively undo the Thursday decision. ...

Robert Tyler, a lawyer with Advocates for Faith and Freedom, which argued against same-sex marriage before the California court, said opponents might seek a stay of the decision until voters could take up the issue in November. Mr. Tyler said he was especially troubled by the court's drawing on a 1948 ruling that overturned a state ban on interracial marriages.

"Where is the court going to rationally limit marriage if it's not a union between a male and female?" he said. "There is no evidence to establish that a homosexual lifestyle is an immutable characteristic such as race."

That last statement is, of course, wrong. There is a stack of evidence that suggests that many people cannot change their sexual orientation, which is not the same thing -- for traditional religious believers -- as changing their behavior. There is also a large body of evidence that people can change their behavior and, to an imperfect degree, their emotions and orientation.

We will not be debating either side of that equation in the comment boxes on this site. However, I freely admit that there are many journalists who simply believe that there is only one side to this debate and that there is no need for accuracy and fairness in quoting the views of those you oppose in this debate.

People on the right will make that claim, concerning coverage in their own niche publications. People on the left will make that argument about coverage in mainstream newspapers, networks and wire services.

This brings me to a very important article on the religious-liberty issues linked to this news event, one that ran in a conservative publication, The Weekly Standard. This is an article that we have frequently recommended to mainstream journalists because of the fine job that Maggie Gallagher did in standing back and quoting -- at length -- the sometimes clashing views of activists in the gay-lesbian-bisexual legal community. If you know of articles on the left that take a similar approach to the views of scholars on the right, please let me know. Pronto.

rainbow altar 01This long chunk of the article opens with quotes from Anthony Picarello, president and general counsel of the Becket Fund for Religious Liberty, which represents a wide range of religious groups.

Just how serious are the coming conflicts over religious liberty stemming from gay marriage?

"The impact will be severe and pervasive," Picarello says flatly. "This is going to affect every aspect of church-state relations." Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses. In times of relative peace, says Picarello, people don't even notice that "the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it's easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter."

For scholars, these will be interesting times: Want to know exactly where the borders of church and state are located? "Wait a few years," Picarello laughs. The flood of litigation surrounding each point of contact will map out the territory. For religious liberty lawyers, there are boom times ahead. ...

Picarello is a Harvard-trained litigator experienced in religious liberty issues. But predicting the legal consequences of as big a change as gay marriage is a job for more than one mind. So last December, the Becket Fund brought together ten religious liberty scholars of right and left to look at the question of the impact of gay marriage on the freedom of religion. Picarello summarizes: "All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming."

These are not necessarily scholars who oppose gay marriage. Chai Feldblum, for example, is a Georgetown law professor who refers to herself as "part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country." Marc Stern is the general counsel for the center-left American Jewish Congress. Robin Wilson of the University of Maryland law school is undecided on gay marriage. Jonathan Turley of George Washington law school has supported legalizing not only gay marriage but also polygamy.

Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.

By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.

Read it all, and please let us know if you see similar article in the mainstream and on the political left. This is going to be a huge, huge issue for Barack Obama and Democrats in the center and on the, relatively speaking, right.

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