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.

Sunday, December 6, 2009

Chip Lupu responds to Robby George

[I sent my post and Robby's response to Chip Lupu for possible comment.  Here is Chip's comment:]

Thank you very much for sharing this exchange with me.  It might surprise you (and perhaps make Robby feel better) to learn that I was not happy with the attribution of the word "fear-mongering" to me in that story.  I never used it in talking to the reporter.  I did say, as I do believe, that the concerns and fears of the anti-same sex marriage movement are vastly overstated—that's an objective reference, relating their statement to the actual state of the law, and is not a subjective imputation of motives.  And, as I recall, I also said to the Times reporter that the Manhattan Declaration was of a piece with articles that had been published in law journals and elsewhere, and with ads that ran in connection with Prop. 8 in California, that did indeed play upon the anxieties of religiously conservative voters.  The best example is the suggestion that pastors would be prosecuted for anti-gay sermons.  In the recent debate over federal Hate Crimes legislation, this was repeated.  Was that "in good faith"?  Or was it designed to stir up irrational opposition to a law that does not and could not (see the First Amendment) criminalize expression of the view that homosexual intimacy is sinful?

So I do regret the use of the word "fear-mongering," but I do not regret the objective point that religious liberty is well-protected, by Constitution and statute, against most of the onslaughts referenced in the Declaration.

Robby's long list of examples in his post is impressive—until you break it down and reflect upon its details.  First, some of what he describes may well be unlawful; does he think the First Amendment is insufficient protection of religious liberty just because states sometimes violate it?  Second, most of his comments on abortion-related exemptions ignore entirely the competing, constitutionally based interests of women who seek abortions.  State-granted religious exemptions cannot unduly burden their rights.  That takes some juggling in at least some of the cases that Robby describes—his side won't always win the balancing match.  Doctors and nurses and pharmacists who treat pregnant women have professional obligations to them—they cannot just ignore those women's interests because they dislike what the women plan to do.  Compare the situation of those who were exempt as conscientious objectors from the draft in WWII—they did not have to be part of the fighting force, but they did have to perform alternative service (e.g., work in hospitals caring for the wounded) in the war effort.  And, unlike medical professionals, they had not voluntarily entered the relevant class; they were conscripted.

I hope that Robby has read the Lupu-Tuttle paper on same sex marriage and religious liberty (it's on SSRN).  [The paper is downloadable here.]  If he has, he will see that we are quite respectful of the concerns of religious institutions, and we acknowledge the concerns of wedding industry vendors (though we think exemptions for them from an obligation to serve gay couples cannot be squared with the long-standing American tradition of creating only very narrow exemptions, especially for business firms, from civil rights laws.)

I'm tempted to say much more about that Declaration—the sections about marriage were so obviously a statement of theological views dressed up in sort-of secular talk (e.g., sexual complementarity of males and females).  Robby's church, and all religious communities, of course may have that view as an internal matter.  (Whether or not it is a bigoted view, bigots will seek its comfort.)  No one is forcing religious communities to perform or celebrate same-sex marriages.  When they "go public" with social services, however, they may open themselves up to regulation.  Even there, exemptions (see the Connecticut legislation) may be advisable.  Because of the force of the interests on both sides of this debate, it is good to have a balanced view of this subject.  Robby's message suggests that he does not.


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