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?
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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.
The same arguments had been delivered when evil liberals end slavery, segregation, women rights ...
With the "traditional" view of the church we would still live on a flat earth orbited by the sun and all mankind would be originated out of incest by the children of one man and one woman ...
Again some churches argument against scientific truth - and with that against God`s truth - and some compliant follower stand beside them without any independent brain use.
If photographer deny to work at a mixed-race marriage/union it`s discrimination, if they deny to work at a Jewish marriage/union it`s discrimination and if they deny to work at a same-sex-marriage/union it`s discrimination.
In all three cases people uses their religious beliefs to defend it, always supported by conservatives and traditionalists and their churches.
You lost the first two cases and you will loose the third too.
Your is the most assinine defense of same sex marriage that I have ever heard. Now, oddly enough, I have no problem with same sex couples. What I have a problem with is compelling people to participate in the process under threat of the law. Why should the photographer be compelled to ply her trade for a same sex marriage ceremony? You speak of slavery, but wouldn't such a requirement be tantamount to slavery? In what way is an individual chosing not to ply her trade violating the rights of the same sex couple wishing to get married? Are you arguing that there is a constitutionally protected right to have your ceremony photographed by the photographer of your choice? If you cant see the difference between someone treating someone else as a slave, and some third party just wanting to beleft alone, then I suppose there is no purpose to trying to continue a dialog with you.
One othe rnote that you will undoubtedly find egregious: not all segregation is illegal. Only state protected, state sponsored, state required segregation is illegal. An individual may exercise his or her right to associate with whomever he or she wishes to, and may in fcat do so for the most base of reasons, including racial ones. That's often what happens in neighborhoods. A white guy can move into a predominantly bl;ack neighborhood, and the people there don't have to like it. Nor do they have to interact with him. But under your patently ridiclous analogy, they'd be required to babysit for him if he wanted it, or come to his barbecue if he wanted it, or repair his car if he asked them to and offered to pay them. If you can't see the obvious first amendment implications from that, beyond simply the freedom of religion but including the freedom of speech and assembly as well, then I recomment moving to a much more homogenous society, and just sit there whining about how you are offended. Because, despite all efforts to the contrary, you don't have the right in this country to be free from offense.
The institution of marriage in America transcends the beliefs of any one religious group. Many different people have come together to build the norms and laws we use to define marriage. It is perfectly reasonable for a person to value traditional marriage on sociological and philosophical grounds without following a specific theology. SSM advocates want to shut these people out of the discussion by pretending to respect religious beliefs.
Sad and sadly unsurprising that you never seem to interview anyone who has a different opinion than yours. Are you that afraid they may convince someone?
Church history is not so black and white. Galileo's theories about the solar system were accepted by the Vatican, however, his refusal to respect the opinions of his superior bishops caused him to be put under house arrest. In time his ideas were used at European academies and universities. Because the Church was cautious in its acceptancce of the theories (which seems the norm for any institution that has accepted a theory for decades) those opposed to the Church have skewed the story in their favor. Read history rather than accepting the words of the majority.
Furthermore, why can't a person discrimnate against another? If the photograher is simply saying "no I will not participate", I do not see a problem. If he is verbally or physically abusive then ther is an issue. Compuslory acceptance of ideology didn't worked for the Church of the middle ages, the Nazis or the Communists.
If I belonged to a religion that believed that women shouldn't leave their homes, could I legally bar them from eating in my restaurant? Of course not. Similarly, in NY, which already outlawed discrimination based on sexual orientation, you can't refuse to serve someone just because they're gay. Where'd this guy get his law degree?
de Soye wrote: With the "traditional" view of the church we would still live on a flat earth orbited by the sun and all mankind would be originated out of incest by the children of one man and one woman ...
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easily the most ignorant and anti-catholic post I've read here. I thought liberals were suppose to be open minded? suppose to defend an individual's conscience? instead we get homosexuality stuffed down our throats Obamacare style! Sorry, but same sex marriage is just not wrong, it's immoral.
Where did I write specific about Galileo`s case?
How many ancient knowledge had been destroyed only because it was pagan/heretic?
How many centuries had been lost till Europe recovered?
How many people had to die because it was God`s will and scientific medicine was heretic and a defiance of God?
What did the churches when Darwin published his evolution theory?
How long told the RCC that the bible accounted Jews as the murderer of Jesus Christ (e.g. God!)
Each time the bible was presented as the only truth, and each time it failed in the end.
Mr. Messner is not trying to protect religious freedom. He's trying to protect the ability to freely discriminate against gays and lesbians in business, employment, medicine, housing, marriage, and any number of situations. He exposes the true goal of those who oppose marriage equality which is to suppress the rights and freedoms of gays and lesbians as much as possible. They hold up their religious beliefs as some lofty excuse when the real motive is fear, ignorance, and/or prejudice. Only if a homosexual spends years and years in so-called "therapy" in a futile attempt to change their sexual orientation and commits to lifelong celibacy and loneliness can they be accepted. Homosexuals are only tolerated (much like you tolerate a recurrent rash) if they keep all personal details to themselves and keep all interactions with a significant other behind closed doors.
According to Gallup, in 1958, 94% of Americans opposed interracial marriages. Many used their religious beliefs as a justification. Today only 17% disapprove of interracial marriages. In 1996, 68% of Americans opposed extending marriage to same-sex couples. Today only 45% oppose. People learned that interracial couples weren't the terrifying, society-ending abomination they had been told, often times from the pulpit. People are learning the same about same-sex couples.
On what religious basis did people oppose interracial marriage? That strikes me as a strawman argument. Even if of different races, interracial couples were still a man and a woman who could (ideally) procreate and complete each other in God's image. I must have missed the day in religion class where I was taught that the Bible says that white people cannot marry black people. By contrast, homosexual conduct is clearly proscribed by all major religions, and the concept of "gay marriage" makes a mockery of holy matrimony between a man and a woman.
The religious justification of banning interracial marriage and relationships was that God made the races separate for a reason. A marriage of different races was "unequally yoked." Procreation was even worse because you created an inferior child, a "mongrel." The Bible was used to supportsuch as in Corinthians when Paul asks "What fellowship hath light with darkness?" As late as 2000, Bob Jones University would expel students who participated in interracial relationships. In court they cited "religious freedom."
People use religion against gays and lesbians, ignoring verses that forbid women speaking in church and eating shrimp. Even if God hates homosexuality (which I firmly believe He does not), how does "religious freedom" translate into forcing someone to live by your personal religious beliefs through the law?
@ RatPack78, "Homosexuals are only tolerated (much like you tolerate a recurrent rash) if they keep all personal details to themselves and keep all interactions with a significant other behind closed doors."
Accurate. Why do you think this is true?
Do you really believe the insanity that a statistically insignificant group who’s predominant distinction is having same gender sex can in any way be equated with race?
Without the left taking up the homosexual cause, they would be un-heard and nothing for this nation to be concerned with given all of it's truly grave problems.
What you can't seem to understand is that progressives have an agenda and to further it, have used the "homosexual cause."
Take a look at the Islam meets homosexual agenda mess that Britain is in right now. Do you think progressives will be your friend when that happens here?
The sticking point for me has been a question that should be easy to answer and yet I have not managed to figure out: what, officially, does "marriage" mean? Maybe this is precisely what is under debate, but I've been surprised at how difficult it is to get a straight (no pun intended) answer.
Is marriage a legal, governmental institution, a religious one, or both? I find it hard to justify telling any two consenting adults they shouldn't be able to voluntarily commingle their finances, visit one another in the hospital, inherit the other's wealth, etc. Inasmuch as it's about legal and economic issues like these, it strikes me as a matter of personal freedom of the kind that conservatives should support. And I may be wrong but my impression is that these are the kinds of things addressed by civil unions, to which I can't object.
Where I get lost is how this differs from "marriage" per se. Is it the sponsorship of a religious institution? To me it seems a matter of semantics. It seems like civil union should be enough. My gay friends assure me it's more than that but they too are unable to answer my question to any satisfaction.
Being atheist myself (hope I don't get kicked off this site for admitting that), I nonetheless see no reason why any church should be required to sanction a same-sex marriage if it goes against that church's beliefs.
So does anyone have a good response? What exactly is the difference between civil union and marriage? If there's not one beyond verbage, then why isn't the former "good enough"? I ask these questions in all honesty because I truly don't know.
I should add that I lean toward opposing gay "marriage" per se. My reasons are personal and complicated, but what categorically does NOT motivate them is "hate", the blanket term leveled at anyone who dares to even question the inevitability of gay marriage, similar to how opponents of Obama are often labelled "racists". That itself is a "hateful" generalization in my opinion.
“Mr. Messner is not trying to protect religious freedom. He's trying to protect the ability to freely discriminate against gays and lesbians in business, employment, medicine, housing, marriage, and any number of situations.”
And homosexuals are *systematically* denied opportunities in business, employment, medicine, housing . . . and any number of situations,” right? (Here I’m leaving out marriage, about which we have a more fundamental disagreement.) Obviously, African-Americans were denied opportunities in *all* these areas before passage of the Civil Rights Act -- not merely here and there but *systematically* -- and their incomes and other indicia of success showed the sad and dramatic results of that kind of system-wide, unjust discrimination.
The comprehensive denial of opportunities to the descendants of slaves was the only justification for overriding freedom of contract and freedom of association in connection with privately owned “public accommodations” -- and the provision of the Civil Rights Act that dealt with “public accommodations” was even in the face of those extreme injustices the most controversial.
The fact is that people are allowed and should be allowed to be stupid, mean, or whimsical; if people don’t want to hire you or serve you, they shouldn’t have to; we are not slaves. An exception to freedom of association and freedom of contract was carved out specifically in order to rectify the injustices faced by descendants of slaves. That exception has now metastasized to the point that you think every single photographer must be forced to take “wedding” portraits of homosexuals, who as a group have long been among the most financially and socially successful people in the nation. You should be ashamed.
pslush says, “I find it hard to justify telling any two consenting adults they shouldn't be able to voluntarily commingle their finances, visit one another in the hospital, inherit the other's wealth, etc."
Yeah, so does everyone, which is why no one opposes any of that and also why, just like everyone else, homosexuals have always been able to do all those things. (I put to one side the one or two examples anyone has been able to come up with, when I have asked, having to do with hospital visitation. Without quibbling over the details of those anecdotes, suffice it to say that legislation dealing with hospital visitation alone and rectifying any problem associated therewith would surely be fine with approximately everybody in the world.)
“And I may be wrong but my impression is that these are the kinds of things addressed by civil unions, to which I can't object.”
Yes, but these kinds of things are already addressed by existing law governing contracts, wills, property, etc. It is true that homosexual activists have come up with some number (or various numbers -- 300, 1100, whatever) of additional marital benefits they say they can’t get under existing law, but they shouldn’t get them because such benefits are designed to encourage marriage, meaning relationships that can potentially provide a father and a mother to a child.
Moreover, homosexuals *do* get all of the additional marital benefits provided in states such as California, but that still hasn’t been enough for them, because the term "domestic partnership," rather than the word “marriage” is attached. Activists were so outraged by the notion of a separate word that they orchestrated a hideous and very public hate campaign against anyone who dared attempt to retain the "marriage" term by supporting Proposition 8.
“What exactly is the difference between civil union and marriage? If there's not one beyond verbage, then why isn't the former ‘good enough’? I ask these questions in all honesty because I truly don't know.”
There is no difference, which is why I oppose civil unions, which are unnecessary on grounds of fairness and which will lead ineluctably to the term “marriage.” Our culture is not going to tolerate “separate but equal.” Indeed, the “separate but equal” aspect of civil unions is the reason homosexuals reject them. They want the term “marriage,” because it carries with it some measure of society’s approbation – exactly what pairs of homosexuals are not entitled to seize. They can of course have all the private arrangements and all the ceremonies they please; they are entitled to tolerance; but they are not entitled to public approval.
If public approval (or the appearance thereof) were the only thing they would gain by co-opting the term “marriage,” that would be reason enough to resist. Sadly, that formality is only the beginning. As soon as Massachusetts had same-sex “marriage” thrust upon it, school curricula were altered in gross ways and Catholic Charities was driven out of adoption services. You see on this very thread the insistence that every photographer in the nation – every caterer, every gazebo-owner, and eventually, whether they admit it or not, every minister – is fair game according to their program.
UnfortunateLy, the same sex "marriage" defenders, being relatve essentialists, do not recognize the existence of extrinsic/intrinsic distinctions. For them, there are no intrinsic features to anything.
Hardcastle: thanks...that helps some. As I said, I have suspected it's largely a semantic issue, and I agree that the fight over the word "marriage" is probably counterproductive to gay rights activists. I feel that whatever meaning still inheres to marriage is dissolved by "marriage equality": what exactly do gays gain by winning the word when in doing so they dilute the meaning of it? At what point in the gradual obsolescence of marriage does it just become so much scorched earth?
