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.

Wednesday, June 18, 2008

SSM and religious liberty

Dale Carpenter has a long and thoughtful post about SSM and religious liberty.  I agree with Dale that concern for religious liberty is not a persuasive reason to oppose SSM, though I think there is more reason to be cautious than Dale suggests, as I've tried to explain here.  Dan Markel agrees with the gist of Carpenter's post, but adds a couple of layers that create even more tension with my own views.

Dan writes:

What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies).  Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.

Why should the embrace of anti-discrimination norms be the price of admission for civil society participants?  The point of civil society, as I see it, is not to disperse public norms among a wide variety of private actors, but to allow the marketplace of moral claims -- including moral claims made in the context of providing goods and services -- to flourish.  The institutions and associations of civil society are not simply vehicles for the implementation of widely held norms; they are also bulwarks against the imposition of widely held norms.  I agree with Dan that access is important, but the universal enforcement of anti-discrimination norms outside "churches and homes alone" seems more concerned with the intrinsic value of the anti-discrimination message than with the instrumental value of access.  E.g., if 98% of colleges and universities admit students and hire faculty without regard to sexual orientation, why should our concern with "access" force a particular religiously affiliated college to stop discriminating on the basis of sexual orientation (or race, for that matter)?  If there are 5 adoption agencies placing kids with same-sex couples, why should Catholic Charities be compelled to do so?  Does access have to be universal in order to be meaningful?

Another position marked out by Dan is even more problematic, in my view.  He addresses the question of:

whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).

My tentative sense is that tax-exempt status is something that should probably be revisited more broadly, and in this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. It leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else.

Justice Powell, concurring in the Bob Jones case, stated the problem better than I can.  He recognized that the majority's language misconstrues the nature of the tax exemption; it is not a tool with which to “reinforce any perceived ‘common community conscience,’” but rather is an “indispensable means of limiting the influence of government orthodoxy on important areas of community life.”  Especially when we're talking about tax exempt status turning on churches' failure to alter their own religious conception of an inescapably religious act, the level of state intrusion is enormous.  This is not a parachurch ministry discriminating on the basis of sexual orientation in hiring office staff; this is at the core of the church's religious identity.


Vischer, Rob | Permalink

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