Monday, March 30, 2015
Reflecting on the striking and troubling embrace by so many who should (or do) know better of a false narrative about Indiana's RFRA (and the many other state laws like it), Ross Douthat notes, as several others have, the dramatic extent to which religious liberty has become controversial, contested, and vulnerable. And, in order to highlight this extent, he poses a number of questions for Indiana's critics:
1) Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?
2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?
3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?
4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?
5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?
6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?
7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?
These are all questions that those of us in the First Amendment academy and on the law-and-religion conference circuit encounter regularly. Too often, the answers are not encouraging.