Redefining Religious Liberty
Gay marriage and the conflict between church and state.


Maggie Gallagher

Prop 8 won yesterday. Even in California, they could find only one supreme-court justice willing to strip 7 million people of their core civil right to amend the state constitution, guaranteed by the constitution itself. Why do I feel, absurdly, that I should be grateful?

Liberals who support gay marriage may understand what their movement is willing to endorse and where it draws the line. The rest of us have to sit back and wonder:

Why stop at marriage? Many well-defined, seemingly secure words and terms can be redefined to help remake society along sexually liberal lines.

Take “religious liberty.” Religious liberty is a deeply American solution to a perennial problem. It means that every individual has a right to pursue ultimate meaning without coercion from the government. Totalitarian governments repress religion because they recognize faith communities as competitors with the state’s power to define — or redefine — human rights.

But a funny thing happened on the way to defeating Communism. Religion has emerged as the sole institution standing in the way of a powerful neo-statist liberalism, in which equality doctrines are used not as a shield but as a sword — to legitimate state intrusion into once-private realms.

In practice, religious voters are the core of resistance to social liberalism, and they empower economic conservatism by providing a much broader base of voters for a center-right coalition government. The temptation to the Left to exclude religious people and institutions from politics is perennial — but also particularly intense for American liberals under modern circumstances. Thus their conundrum: How to repress religion without violating liberal doctrines about respecting religious liberty?

One way is to narrow religious freedom’s scope while claiming to endorse the principle in general. So the Human Rights Campaign believes it supports religious liberty because it does not intend to have the government jail pastors who refuse to perform same-sex unions. Being American liberals, they feel pretty good about themselves for permitting religion to live quietly and impotently behind closed doors.

But being American liberals, they increasingly look across the pond for moral leadership. And what we are finding in our sister democracies (which admittedly do not have First Amendments) is not very reassuring.

Consider what is happening right now in Great Britain, our closest sister democracy and the one with the strongest free-speech tradition. How does the British government treat religious liberty when it clashes with “gay equality”?

Can the British government force a Catholic school to retain a principal who enters a civil union? Yes, it already has. How can that be, given British religious liberty? Well, the government says that if a religion teacher at a Catholic school enters a gay union publicly, he or she could be fired. But nobody else.

Can the government fine an Anglican bishop who refuses to hire an actively and proudly gay youth minister? Yes, it already has. (How is this justified by the above principle? I don’t know. I just know the government can do it, because it has.)

In Great Britain, the use of “gay equality” to oppress Christianity is not down the road; it’s already here.

Check out this story from the Telegraph. Note how the “equalities minister” reacts to the suggestion that there should be exemptions from anti-discrimination hiring provisions for religious groups, so that they do not have to hire people who dispute their core moral teachings on marriage and sex:

Religious groups are to be forced to accept homosexual youth workers, secretaries and other staff, even if their faith holds same-sex relationships to be sinful. . . . Religious leaders had hoped to lobby for exemptions to the Equality Bill but Maria Eagle, the deputy equalities minister, has now indicated that it will cover almost all church employees.

Gay-marriage advocates complain that marriage itself is not the core of these emerging church-state conflicts. They are correct; gay marriage is not the core, but it is the ultimate manifestation of the core. The core is this strange use of an equality argument to transform an action — in this case, marrying persons of the same sex — into an equality right.

This is totally new in American legal and cultural discourse. Actions are typically protected by liberty interests, not equality interests. Sexual liberty means I have the right to do what I want, not the right to be free from the knowledge that others disagree, or from their choosing to build institutions that teach that my sexual actions are wrong and exclude those who engage in them.

Equality is typically predicated on characteristics that do not imply actions, because actions are always choices. Skin color is irrelevant. And unchosen. Sexual orientation is almost certainly unchosen, but the decision to incorporate a sexual desire into one’s identity, and then to act on it, is a decision. Maybe most people think it’s the right decision, the healthiest decision, but the point is that it’s a choice, and subject to moral reflection. A sexual desire is not its own justification.

And a further step in moral reasoning is needed to elevate the right to do what one wishes in private into a right to enter a gay marriage. Gay marriage as an equality right thus represents a strange new hybrid — it’s the right to act in a certain way, to have the state and other institutions bless one’s actions, and to punish people (the way we punish bigots) for expressing disagreement with those actions. It is a totally novel equality right, an equality right on steroids.

What is driving this is the race analogy for understanding gay rights. Unless gay-rights advocates find another metaphor (say religious liberty?), the rights taking hold in Great Britain will soon be incorporated (via Supreme Court Justice Sotomayor?) into the Bill of Rights.

Too many libertarians do not understand the essentially Marxist project they are now promoting. Watch out. Individuals may be left free, but institutions that stand against the state’s values will be repressed in the name of equality. Individuals who are not free to form institutions (associate) are impotent against the state’s power to impose its values.

– Maggie Gallagher is president of the National Organization for Marriage.