Robert Anthony Maranto, who supports equal marriage for same-sex couples but is worried about religious rights, wrote “Do Gay Rights Trump Religion?”. From Professor Maranto’s essay:
…a number of recent court and bureaucratic decisions [have forced] faith-based institutions to embrace gay rights, no matter their sacred beliefs.
Yeshiva University was ordered to allow same-sex couples in its married dormitory. In Boston, Catholic Charities ended adoptions after the state supreme court forced it to place children with gay and lesbian couples. In short, many intellectuals not only want to permit same-sex marriage; they want to stigmatize religious dissenters as either bigots or fools.
First of all, it’s obvious Maranto’s examples don’t warrant his unkind conclusion. If I want anti-discrimination laws to apply to all businesses and student groups equally, that isn’t because I want to stigmatize religious people; it’s because I sincerely think that it’s important for queers to be treated as equal members of society at all levels. It would have been kinder, and also more accurate, for Professor Maranto to assume that those who want equal rights act out of a desire for equality, not a desire to stigmatize.1
(If I said supermarkets shouldn’t be allowed to refuse gay customers, would Professor Maranto conclude my goal is to stigmatize grocery owners?)
Now let’s consider Professor Maranto’s examples, Yeshiva University and Catholic Charities of Boston.
I support narrow exemptions to anti-discrimination laws; for instance, no religious congregation should be forced to perform same-sex weddings, nor should individual ministers (or rabbis, or priests, or imams, etc) be forced to conduct such ceremonies.2 A wedding in a church (shul, etc) is a religious ceremony, and the government shouldn’t intrude on that cermony. Similarly, no independent minister should be forced to participate in a wedding she doesn’t want to participate in.3
But Professor Maranto’s examples aren’t narrow, and he doesn’t suggest any limits on his proposed exemption.
For example, when people read that “Yeshiva University was ordered to allow same-sex couples in its married dormitory,” I think many of them imagine a place for formal religious instruction, a college where religious Jews go to combine religious practice with education, or to learn to become Orthodox rabbis.
In fact, the Yeshiva University lawsuit concerned student housing at the Albert Einstein College of Medicine, which is owned by Y.U.. Albert Einstein College isn’t a religious school — it’s a secular medical school which accepts students regardless of ethnicity or religion, and which prides itself on diversity.
Furthermore, Albert Einstein College is located in one of the most expensive housing markets in the country. The difference between having access to cheap student housing, or not, could be the difference between being able to complete a medical school education or not. Why should going to medical school be cheaper for straight married couples? When weighing these conflicts, we have to consider not only freedom of worship, but also if lesbian and gay students are being treated fairly.
I don’t want to intrude on anyone’s religious freedom. But state anti-discrimination laws applying to a secular medical school don’t limit any Jew’s ability to worship as she pleases. The claim of a religious exemption shouldn’t mean that essentially secular businesses are exempt from the same laws all other businesses follow.
Regarding Catholic Charities of Boston, Professor Maranto’s summary is simply wrong; there was no order from the Massachusetts Supreme Court. Quoting Morris Thurston:
Catholic Charities in Boston was not forced to close its doors–indeed it is still very active. (See its website at www.ccab.org.) Rather, Catholic Charities voluntarily ceased providing adoption service in Massachusetts. According to the Boston Globe, Catholic Charities elected to close its doors in protest over the legalization of gay marriage in Massachusetts and because it was reluctant to undertake a lawsuit that might be lost.
LDS Family Services still operates in Massachusetts, as it does in California. There are several differences between LDSFS and Catholic Charities. LDSFS does not take federal and state funds; Catholic Charities does. LDSFS facilities only voluntary adoptions and permits the birth mother to approve the adoptive parents. Catholic Charities handled non-voluntary adoptions (where the state seizes the children) and normally did not accommodate birth mother approval. Catholic Charities had contracts with the state and was, in effect, acting as an agent of the state. LDSFS does not. To date, LDS Family Services has never been forced to place any children with a gay couple, and has never been sued for not doing so.
These details aside, it’s unclear why adoption is a case where religious freedoms should trump the legitimate desire of states to ensure equal treatment. Requiring adoption businesses — especially those that act as agents of the state — to treat gays equally, does not prevent Catholics and others from worshiping as they choose. And as Scot at Utah Cog points out in an excellent post, the adoption rates in Massachusetts didn’t go down as a result of Catholic Charities of Boston’s choice.
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In his editorial, Professor Maranto doesn’t describe the standards he used to decide that Yeshiva University and Catholic Charities should be exempt from anti-discrimination laws. Nor does he say if he wants this exemption applied across the board, or if he thinks that lesbians and gays are the only people whose legal protections should be weakened in the name of religious freedom.
But as far as I can infer from his examples, he simply thinks that all groups or businesses owned or run by religious institutions should get a “get out of discrimination laws free” card, at least when it comes to discrimination against gays. But this supposed “right” of religions, if it is applied without limits, could easily have far-reaching and unfair consequences.
For instance, what happens when a nurse or doctor at a Church-owned hospital decides not to acknowlege a patient’s same-sex partner or spouse? (And if Professor Maranto says that no, hospitals shouldn’t discriminate that way, then why is it less of an affront to religion to forbid discrimination in a hospital, than it is to forbid discrimination in a secular medical school, or in an adoption agency?)
What prevents a small business owner who wants to discriminate from simply forming a “church” to be the legal owner of her business?
Religious institutions are sometimes huge and wealthy, and the biggest ones can own dozens of businesses. I would never want the government to intrude on anyone’s right to worship as they please, but it goes too far to say that any business owned by a church — no matter how secular that business is in practice — should be exempt from anti-discrimination law. To say that would be to say that the right of religions to discriminate — not to worship as they please, but to discriminate as they please — trumps the right of lesbian and gay people to be treated as equal members of society, with equal dignity.
- Even where people do criticize or even stigmatize others for bigotry, I’d argue that their purpose is still equality; the stigmatization is a means towards the end of equality. [↩]
- Of course, many congregations and officiants freely choose to conduct same-sex ceremonies. [↩]
- Of course, there’s no legal need to pass a law stating these exemptions, since they’re already implicit in the First Amendment’s guarantee of freedom of religion. But if passing a law restating this right would make religious people feel more secure and comfortable, then I’m all for it. [↩]