The Corner

Gay Marriage v. Religious Liberty

Maggie Gallagher has opened up a whole new dimension in the argument over same-sex marriage with her piece, “Banned in Boston.”

If you support the traditional definition of marriage, or if you value religious liberty and freedom of speech, you ought to be very concerned by the scenario Gallagher lays out.

Scholars on the left and right agree that the gay marriage movement has raised the specter of a massive and protracted battle over religious liberty. In states that adopt same-sex marriage, religious liberty is clearly going to lose. The source of the problem is the flawed analogy between the battle for same-sex marriage and the sixties movement for civil rights. Gay marriage proponents argue that sexual orientation is like race, and that opponents of same-sex marriage are therefore like bigots who oppose interracial marriage. Once same-sex marriage becomes law, that understanding will be controlling.

So in states with same-sex marriage, religiously affiliated schools, adoption agencies, psychological clinics, social workers, marital counselors, etc. will be forced to choose between going out of business and violating their own deeply held beliefs. If a religious social service agency refuses to offer counseling designed to preserve the marriage of a same-sex couple, it could lose its tax exempt status. Religious schools would either have to tolerate conduct they believed to be sinful, or face a cut-off of federal funds. In effect, religiously affiliated organizations that oppose same-sex marriage would be treated like Bob Jones university was when it maintained a prohibition on inter-racial dating. It’s already happening, as we’ve seen with the recent withdrawal of Boston’s Catholic Charities from the adoption business.

Free speech could also be under threat, as sexual-harassment-in-the-workplace principles are used by nervous corporate lawyers to draw speech prohibitions on the marriage issue. Fear of litigation will breed self-censorship. One expert predicts “a concerted effort to take same-sex marriage from a negative right to be free of state interference to a positive entitlement to assistance by others.”

I don’t think there’s any doubt that such a campaign is in the offing. Just look at the news. A campaign has been launched to prevent John McCain from delivering the graduation address at New York’s New School, the chief reason being McCain’s support for a state marriage amendment and his willingness to speak at Jerry Falwell’s university. I remember 1990, when there were protests against Colin Powell speaking at Harvard’s commencement, ostensibly because of “Don’t ask; don’t tell.” Until recently, military recruiters have been banned from campuses for the same reason.

Until reading Gallagher’s piece, I never made much of the use of “Don’t ask; don’t tell” and related issues as reasons to block speech. To me, these excuses were convenient covers for a determination to block speech on broader grounds: opposition to Republican politicians and/or opposition to the military. But now I see that these “excuses” have to be taken seriously in their own right. The very fact that opposition to gay marriage can be treated as the most publicly acceptable reason to suppress someone’s speech is an ominous sign. If gay marriage is legalized, there will surely be “a concerted effort to take same-sex marriage from a negative right to be free of state interference to a positive entitlement to assistance by others.” We can be certain of that, because it’s already happening.

A few proponents of same-sex marriage might endorse conscience exemptions, but they won’t control the gay marriage movement as a whole. Notice that in Massachusetts, no one but Governor Romney favors a conscience exemption, and he’s out of office soon.

For religious folks, the lesson in all this is clear. There’s a lot more at stake in the battle over same-sex marriage than the marriage issue itself, important as that is. The very ability of religiously affiliated organizations to exist and operate is under threat. Same-sex marriage will be used as a tool, not only to silence opposition, but to unstring religion itself as a force in American life.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center.

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