Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 26, 2006

Kmiec on gay marriage and church autonomy

Pepperdine law prof Doug Kmiec has an op-ed in today's Chicago Tribune arguing that a federal marriage amendment is needed to protect the autonomy of churches who oppose same-sex marriage:

With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

I agree with Prof. Kmiec that it would be a very bad thing for churches to lose their tax-exempt status for opposing gay marriage.  But I disagree with his suggestion that the prudent solution is to enforce a top-down resolution of the issue, effectively shutting down any sort of localized marketplace of ideas, simply because we don't like the potential outcome(s).  I'm a full supporter of the Supreme Court's ruling in Dale protecting the Boy Scouts' associational autonomy, in part because the ruling facilitated a localized, bottom-up approach to the issue.  It's a good thing that other associations have staged boycotts and encouraged local governments to withhold support of the Boy Scouts -- that's how civil society should work.  (I've made this argument elsewhere.)  I think we're a long way from having traditional faith communities get the Bob Jones treatment from the IRS for not performing same-sex marriage.  But more broadly, if we want to keep associational life in this country vibrant, we should be very hesitant to start handing contested moral issues over for one-size-fits-all collective solutions.

Rob

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Vischer, Rob | Permalink

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