Bench Memos

A Permanent Threat to Religious Freedom

That’s what Tom Messner rightly concludes about same-sex marriage, in his interview with Kathryn Lopez today:

Same-sex marriage does not simply include more people in the definition of civil marriage; it labels the natural understanding of marriage as a form of irrational prejudice, ignorance, bigotry, and even hatred. In other words, same-sex-marriage laws teach the public that people who view marriage in the natural way are morally equivalent to racists.

Once this idea is embedded in the law, there will be enormous pressure to take it to its logical conclusion by marginalizing and penalizing people who continue to think marriage is one man and one woman. Some of this pressure will come from state sources and some will come from private sources, but in both cases it will find ways through whatever cracks might exist in protections for religious and moral conscience.

Exactly so.  The New York same-sex marriage statute passed last month contains woefully inadequate “exemptions” for religious institutions, and none at all for private individuals.  But it is hard to imagine a statute that adequately protected the conscience rights of Christians, Jews, Muslims, and other individuals who continue to believe that “marriage” is a word whose meaning is rooted in the natures of men and women–unless the law said that every individual, in his private life, in his economic activity in the marketplace, and in any public capacity in which he may find himself, is free to disregard the claims of any same-sex couple to be “married,” notwithstanding any license they receive from the state.  But such a blanket permission would undermine the very purpose of the new legal fiction.

The conflict is that direct.  Either the great religions of the world–all of them–have historically taught the truth about marriage as a union of a man and a woman, a truth that has up until the last few years been reflected in the laws of every nation.  (And this is true even of faiths and nations, now or in the past, that have approved of polygamy, in which a man has a marriage with each of his wives, but the wives are not married to each other.  It goes without saying that believing the truth about marriage’s nature does not in itself lead to approval of polygamy, and may–I think should–lead away from it.)  Or they have taught a falsehood, and their stubborn adherents must be broken to a new “truth” lately discovered.  An “exemptions” regime, while it may survive as a shield over the inner precincts of churches and synagogues and mosques that refuse to marry same-sex couples, cannot last long beyond that.

Tom Messner went on, in the immediate sequel to the cogent remarks above, to quote Princeton’s Robert George: “If you ask, ‘What can be done going forward around the country to protect religious liberty?’ the answer is this: Win the fight to preserve the legal definition of marriage as the conjugal union of husband and wife. Period.”

Real marriage, and real religious freedom.  Or neither.  That’s our choice.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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