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, April 26, 2013

"Protecting Same-Sex Marriage and Religious Liberty"

Doug Laycock and I have posted a short essay with the above title, published in the Virginia Law Review's online format, drawn from the brief filed for the American Jewish Committee in the current marriage cases.

https://mirrorofjustice.blogs.com/mirrorofjustice/2013/04/protecting-same-sex-marriage-and-religious-liberty.html

Berg, Thomas | Permalink

Comments


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Professor Berg, I was not able to download your essay or your brief.

As the mother of a daughter who developed a same-sex attraction as the result of the perfect storm that included a date rape when she was in college by a young man she trusted, I Love my daughter, as I Love all my children. I have watched my daughter grow and develop and know my daughter suffers with an emotional problem that has caused her physical, emotional, and spiritual harm. I desire that all my children learn to develop healthy relationships and friendships that are respectful and dignified, grounded in authentic Love.

The claim has been made that there are various religions that allow for same-sex marriage and thus these various religions justify same-sex marriage based on particular doctrines of faith. It is a self evident truth that the marital act is necessary to continue Life on Earth, and thus the marital act, which is Life-affirming and Life-sustaining, is Good for the posterity and prosperity of this nation. On what religious doctrine do the various churches that allow for same-sex marriage base their teaching that same-sex sexual acts serve the Good of those persons involved in a same-sex sexual relationship, and thus these sexual relationships should be set apart or Sanctified by being recognized as valid marriages? I thank you in advance for answering my question.

Posted by: Nancy | Apr 26, 2013 8:34:41 AM

Perez v. Sharp, an interracial marriage case decided twenty years before Loving, raised religious liberty issues too. The concurring opinion of Judge Edmonds particularly rested on that ground -- denial of marriage rights then was particularly hard since fornication, cohabitation and other laws could seriously block the freedom to make a life together for the unmarried.

http://scholar.google.com/scholar_case?case=16628726707857061522&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Years later, the Shahar v. Bowers case raised religious freedom issues when a lesbian was fired after having a private Jewish marriage ceremony. Marriage licenses still are important to fully enjoy married life even if the religion of your choice honors the marriage w/o the state doing so. States that deny same sex marriage rights selectively honor the beliefs of some and for reasons that are not justified by secular law.

The issues cited by the short article as to liberty concerns vis-a-vis same sex married couples are not novel either. Replace "divorced person remarried" or "right to deny unmarried couples to rent" etc., similar questions can be raised. In some cases, the public sphere requires equal rights. In some cases, individual beliefs (such as a specific psychiatrist in private practice not taking gay patients) can be balanced.

Nancy, why don't you simply do a search on Google or whatever to answer your question? The question is rhetorical, perhaps, since everyone knows that marriage is not only in place to because it is "necessary to continue Life on Earth," which is why senior citizens, e.g., marry, for reasons of love, companionship and other "life affirming" reasons, be it with same sex or different sex partners.

The date rape matter is horrible, of course, but different sex couples at times have their own serious problems, including entering relationships for troubled reasons. Parents of children in different sex couples can provide their own tragic tales. Same sex and different sex relationships as a whole are not of that nature.

If you seriously concerned with the question, why don't you simply go on Google and do a search? In fact, I provided a link when you asked the question that answered it in the spirit of some self-proclaimed Catholics. I fear though you are not truly listening.

Posted by: Joe | Apr 26, 2013 11:49:50 AM

As your essay states, culture often fails to make the distinction between civil and religious marriage, and you later point out that it is important for the Court to distinguish between the two relationships. But, couldn't the conflation of the two culturally simply be due to the common usage of the word "marriage"? Would it not protect both legal equality and religious liberty if the state simply removed the word "marriage" from its vernacular?

My point is that if, going forward, the legal relationship carried different terminology, perhaps as a "union" rather than a "marriage", that would have a built-in protection against the problem of cultural conflation. Leaving the word "marriage" to the religious relationship would enable the distinction that the religious community seeks, but it would do nothing to limit rights that the marriage equality community seek. What do you think?

Posted by: Blake Crenshaw | Apr 26, 2013 12:19:40 PM

The word "marriage" in our culture is not just something applied to "the religious relationship," and the government uses that word because of the (broad) cultural understanding of the word. If the government stopped using the word, akin to the French Revolution attempt to change the name of the months of the year or something, this wouldn't change. It has an artificial feel to it. Finally, "the religious community" doesn't seek the distinction. Some aspect of it that doesn't support the growing application of the term to same sex marriages do.

Posted by: Joe | Apr 26, 2013 12:37:28 PM

I appreciate your nuanced essay and that you acknowledge that both of these competing interests have valid points to make. I like Blake's suggestion, although, like Joe, I think it wouldn't necessarily solve the problems raised by the essay; namely that religious organizations could be sued for refusing to host same-sex marriages or unions.

My question is if the governments in the various states enacted laws protecting these religious institutions from lawsuits in such cases, what would be the basis of those laws? Would they be constitutional or would they be deemed as state-sanctioned discrimination on the basis of an immutable characteristic, homosexuality?

Again, thank you for your input to this debate. I really enjoyed the essay.

Posted by: Will Holland | Apr 26, 2013 4:57:20 PM

Thanks for all the comments so far. Will, it's clear in the law that states have the authority to exempt religiously motivated conduct from regulation in order to protect religious freedom values (whether or not the First Amendment itself would protect the religious conduct). The state that does so is not supporting or endorsing the religious group's position but is refraining, on the basis of constitutional religious freedom values, from regulating it. The Supreme Court said so, 9-0, in a case called Amos. That involved religious discrimination, but many other decisions allow such exemptions, and many exemptions exist, even with respect to discrimination based on "immutable" characteristics. Churches can maintain all-male clergy; religious institutions can receive Title IX funding and still adhere to religiously based norms concerning men and women; and there are already many exemptions in state laws protecting objecting religious organizations from having to facilitate same-sex relationships or employ people who fail to follow the religion's sexual norms. These are ways to reduce social conflict and respect conscience while still allowing gays and lesbians to participate in the economy free, in the vast majority of cases, from differential treatment.

Posted by: Tom Berg | Apr 26, 2013 5:10:37 PM

Nancy asked a question in her comment at the top of this thread, a question which deserves an answer.

She asked, “On what religious doctrine do the various churches that allow for same-sex marriage base their teaching that same-sex sexual acts serve the Good of those persons involved in a same-sex sexual relationship, and thus these sexual relationships should be set apart or Sanctified by being recognized as valid marriages?”

From the standpoint of religious doctrines, I simply don’t know. From the standpoint of Law, it does not matter. No person needs to be able to specify a formal religious doctrine in support of their claims in order to have their religious liberties protected. The reason should be clear: if the court could require a formal doctrine, then the courts would have to evaluate whatever doctrine a claimant put forward to see if it were “valid”, or the court would have to decide what organizations or institutions can issue “valid” doctrines. This is a place we want the courts to stay out of; so no requirement of a formal doctrine can be set.

sean s.

Posted by: sean samis | Apr 27, 2013 7:45:59 AM

The free exercise of religion supported by sean is clearly correct, but the religious doctrine question is not mysterious. For those who want a detailed biblical analysis, you might appreciate "God v. Gay" by Jay Michaelson. There are other books and as noted various people and institutions talk about it online.

The basic reason granted is that same sex attraction is part of human sexuality and is not harmful. The intimate bonds formed like different sex attraction are therefore equally worthy of sanction and blessing by the church. Marriage follows from this when the couple wishes to swear their love and allegiance to each other. Marriage is not just about procreation. Different sex couples marry for other reasons, including when they cannot procreate. Anyway, same sex couples also have families that they raise, and marriage strengthens them, just as is the case for different sex couples.

This is standard stuff. It has been said over and over again. What is there to "answer"?


Posted by: Joe | Apr 27, 2013 9:24:42 AM

Does arguing that the courts should protect "same-sex marriage" imply that the authors of this article believe that there is no rational basis, aside from irrational religious beliefs, for having an institution devoted specifically to the unique relationship between man and woman which is capable of bearing children and having them raised by those that conceived them? If the authors deny the premise that marriage can be defended on the basis of reason, do they hold they hold to the same anthropological notions as the Catholic faith? Or have I been deceived in believing that a blog devoted to the development of Catholic legal theory presupposed the Catholic faith? I started following this blog a long time ago and have enjoyed it immensely, but over the past month or so, many of the articles coming from it have seemed to smack of a tone of dissent. I certainly appreciate that the authors conclude that I have the right to dissent from the state-approved sexual anthropology by refusing to participate (or acknowledge?) in civil same-sex marriages. This is not enough for me. As a Catholic, I need to have the ability to make my case publicly and on the basis on reason. The philosophy I learned from my faith needs to be able to animate my public as well as private life. My Church does not teach that same-sex marriage is immoral because of revelation, so much as she teaches that it is philosophically impossible, and that the attempt to institutionalize it is bound to be socially destructive. If Catholics genuinely believe their faith and care about the common good, it seems unlikely that we will be content with having limited protections of civil law accorded to our anthropological beliefs on the basis of religious freedom.

Posted by: Joseph Anthony | May 1, 2013 2:15:50 AM

Joseph Anthony;

You wrote that, “As a Catholic, I need to have the ability to make my case publicly and on the basis on reason. The philosophy I learned from my faith needs to be able to animate my public as well as private life.” You most certainly have the right to STATE your case publicly..., but so do those who disagree with you.

As for “making your case” which I interpret as successfully persuading others to agree, well, no one has a right to win, only to play. No one has an obligation to concede to your case. Likewise, of course, those who disagree with you have no right to win either. You have no obligation to concede.

You wrote that “My Church does not teach that same-sex marriage is immoral because of revelation, so much as she teaches that it is philosophically impossible, and that the attempt to institutionalize it is bound to be socially destructive.”

I accept that you accurately summarize what the Church teaches; the question is: Should the State enact Catholic Doctrine? Even on a blog devoted to Catholic legal theory, the problems that suggestion raises need to be acknowledged. Religious freedom protects Catholics as much as it protects others. Once the State is empowered to enact Catholic doctrine, it is empowered to enact ANY RELIGION’S doctrine. Sharia law, anyone?

I KNOW you don’t advocate Sharia Law. I KNOW Catholic law is not comparable to Sharia Law; but if the State can enact any religious doctrine, it could enact ANY religious doctrine, including Sharia. Religious freedom keeps Sharia at bay by keeping all religious laws at bay.

You concluded with “If Catholics genuinely believe their faith and care about the common good, it seems unlikely that we will be content with having limited protections of civil law accorded to our anthropological beliefs on the basis of religious freedom.”

I’m not sure what that means. I do know that legally recognized same-sex marriage does not deprive Catholic marriages of their legal protections.

sean s.

Posted by: sean samis | May 2, 2013 2:21:13 PM

J.A.,

First, I don't believe that the traditional approach to marriage is irrational or based solely on religious beliefs, and our SCT brief is careful not to make such an argument. Nor does the brief argue that religious beliefs are disqualified from serving as a basis for legislation. Instead the constitutional argument is that the strength of the interest in being able to marry, and the prevalance of unjustified discrimination against gays, call for heightened constitutional scrutiny; and the arguments about the negative consequences of same-sex marriage are too speculative to satisfy that standard. Second, of course I believe that supporters of traditional marriage have the right "to make [the] case publicly based on reason"; if people have the free exercise right not to participate in facilitating same-sex marriages (as I argue they should), it follows a fortiori that they have the right to speak against them. What the brief does say is that no one's religious liberty is abridged simply by the recognition of same-sex marriage. The abridgement comes when people and organizations are forced as a result to facilitate such marriages in some reasonably direct way because of non-discrimination laws etc. And that issue can be addressed with exemptions, as we advocate.

Of course on some issues I/you cannot give up arguing that the law should reflect our views, and it would not be enough to say "exempt me so I don't have to participate." Practices that unjustifiably take life are such a situation; that's why it will not be enough merely to seek exemption from facilitating abortions (although that's important). But there are also moral issues where I/you should not focus on enacting our views into law and instead should seek to protect, through exemption, our liberty to follow our faith as individuals and religious communities. The Catholic Church has concluded that contraception is like that. It's partly a judgment about what is sufficiently fundamental, partly a matter of considerations of prudence. For your argument to work, I think you have to explain why opposing same-sex marriage is in the first category rather than the second. I believe that at the very least, the considerations of prudence will increasingly point strongly in favor of focusing on religious liberty protection rather than on blocking same-sex civil marriage. You might discount my judgment on that because I've also come to conclude that recognizing such marriages will be better for marriage than trying to block them. But I'd assert that my prudential judgment to focus on religious liberty is right even if you disagree with my conclusion on what will be better for marriage.

Posted by: Tom Berg | May 2, 2013 6:40:59 PM

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