Freedom as a Bargaining Chip?
Religion and the State of New York.


What role did religious freedom play in the negotiations over same-sex marriage in New York, and what role should it play? During the legislative debate, we talked to religious-freedom expert Robin Wilson, and we’ve since explored the issue on National Review Online with Maggie Gallagher and Princeton’s Robert P. George. But focusing in on how religious freedom played out in the end, Thomas M. Messner, a lawyer and visiting fellow at the DeVos Center for Religion and Civil Society, talks to NRO’s Kathryn Jean Lopez.

Kathryn Jean Lopez: It’s been said that protections for religious freedom were the key to winning the swing votes on the same-sex-marriage bill in New York. What do you think about that?

Tom Messner: If that’s true, it’s regrettable. The marriage debate is first and foremost a debate about the meaning and public purposes of marriage, not a debate about religious freedom. Yes, people on both sides of the marriage debate now recognize that same-sex marriage threatens religious freedom. But the religious-freedom consequences of redefining marriage are a threshold issue of concern to everyone, not an escape hatch for people who would rather avoid difficult issues.

Even if the religious-freedom issues were not on the table, proponents of same-sex marriage would still need to explain why marriage should no longer have any intrinsic connection between children and mothers and fathers and why people who think it should are morally equivalent to racists. Lawmakers would need to squarely confront the core issues presented by genderless marriage, even if threats to religious freedom were not a factor.

In other words, no matter what someone thinks about the merits of genderless marriage, threats to religious freedom from same-sex marriage present serious concerns about redefining marriage. On the other hand, even if same-sex marriage posed no threats to religious freedom at all, the core reasons to support marriage as one man and one woman remain just as compelling and must be addressed.

Lopez: But what about people who support same-sex marriage as a matter of policy but have expressed reservations because of the problems same-sex marriage will cause religious freedom? Do exemptions like those in the New York same-sex-marriage bill clear the way for people to support same-sex marriage if they were going to support it anyhow?

Messner: No, as other analysts already have observed, those much-touted exemptions leave much to be desired. Consider the case in New Mexico, where a Christian photographer was hauled before the state human-rights tribunal when she conscientiously objected to participating as a photographer in a same-sex commitment ceremony. The New York legislation just enacted appears to do nothing to avert that kind of situation in New York.

Similar concerns have been raised about how a combination of same-sex marriage and nondiscrimination laws threatens the religious freedom of professionals. Certainly many counselors, psychologists, lawyers, and doctors in New York have no religious or moral problem serving homosexual clients. But it should surprise no one if many of these same professionals might conscientiously object to providing services that facilitate or express moral approval of same-sex conduct and relationships. Again, the New York law just enacted appears to do nothing to protect religious and moral conscience in many if not most or all of these situations.

Lopez: What about groups like Catholic Charities and other religious social-service agencies that provide adoption and foster-care services? They’ve been forced out of business in places like Massachusetts and D.C. because they conscientiously object to placing children in homes without both a mother and a father. Will they be protected in New York?

Messner: It’s not entirely clear from the face of the legislation whether certain religious groups who serve children and other vulnerable members of society will be protected. Maximizing the number of private social-service groups helping the poor and disadvantaged in society seems like a no-brainer, even for people who support same-sex marriage. Unfortunately, although New York lawmakers had a chance to be very clear on this point, they opted instead for confusion and ambiguity.

Given the hostility some activists have shown to groups like Catholic Charities in the past, you can be fairly certain that many of them will take any future opportunity to argue that religious adoption and foster-care agencies objecting to same-sex marriage should be put out to pasture. Obviously, this kind of thing is bad for religiously inspired social action and for the poor and needy people who benefit from it. But if the past is any guide to the future, some activists will blame conscientious objectors for honoring their understanding of truth and morality, not public officials for failing to protect the exercise of religious and moral conscience.