Reply to George: XIII. Marriage Equality Threatens Religious Freedom

[This post is part of a series analyzing Robert George’s widely-read article, “What is Marriage“, which appeared on pages 245-286 of the Harvard Journal of Law and Public Policy. You can view all posts in the series here.]

Pages 263-265: In which George accidentally suggests the First Amendment is a threat to religious freedom.

A digression

I’m going to put Robert George on hold for a moment. Instead, I’ll talk about Owen and Eunice Johns, the latest “victims” of homofascist intolerance of religion.  NOM and other anti-gays have taken up their cause.  Here’s the news report:

A Pentecostal Christian couple have lost their high court claim that they were discriminated against by a local authority because they insisted on their right to tell young foster children that homosexuality is morally wrong.

Eunice and Owen Johns, who are in their sixties and have fostered children in the past, claimed they were being discriminated against by Derby city council because of their Christian beliefs, after they told a social worker they could not tell a child a “homosexual lifestyle” was acceptable. The couple had hoped to foster five- to 10-year-olds.

First, note the couple is British. Examples from other countries simply don’t count in the US. America has its own body of law around religious freedom. When our American opponents insist on citing foreign cases, they’re simply demonstrating the dearth of evidence about what’s happening in the US.  Never forget that.

However, let’s pretend this is an American case. Would it represent some sort of new assault on religious freedom?

No.

The issue here isn’t about religious freedom. It’s not about discrimination against one group or another. It’s about the welfare of the child. The only issue, for me, is this:  

Will it harm children to place them with a couple who will openly condemn homosexuality?

See, the First Amendment guarantees religious freedom, but it’s doesn’t necessarily give you the right to do things that would otherwise be illegal. You know, like human sacrifice. Or putting children at risk.

This has been tested by cases involving Christian Scientists. McKown v. Lundman was a landmark case:

The mother of a young boy who died from untreated diabetes, and the Christian Science practitioners who administered prayer rather than insulin as the 11-year-old slipped into a coma, failed today to persuade the Supreme Court to hear their appeal of a $1.5 million damage judgment won in a lawsuit by the boy’s father.

The appeal, from a 1995 ruling by the Minnesota Court of Appeals, presented the case as an urgent issue of religious freedom, with an importance to Christian Scientists that “can scarcely be overstated,” according to the petition filed on behalf of four people: the mother, her son’s stepfather, the Christian Science practitioner who prayed from his own home and the Christian Science nurse who came to the family’s house and kept detailed notes of the boy’s rapidly deteriorating condition without summoning outside help. The boy’s parents were divorced.

In refusing to hear the appeal, the US Supreme Court held up the state court’s decision, which said:

Although one is free to believe what one will, religious freedom ends when one’s conduct offends the law by, for example, endangering a child’s life.

My point? The government has a long history of holding the welfare of the child over the religious freedom of the parents. This is nothing new. It’s not the sudden result of gays and lesbians demanding equality.

Which brings us back to this:

Will it harm children to place them with a couple who will openly condemn homosexuality?

Personally, I think we can find evidence that it does. Our opponents may dispute that evidence, and that’s their right. It’s why our system has Congressional hearings and experts testifying in court. But this is the issue under dispute, not whether prospective adoptive parents have the right to treat children any way their religion demands. We already know they do not.*

(By the way, some might claim they’re protecting their child’s ultimate welfare — the salvation of the child’s soul — by condemning homosexuality. But of course the government can neither officially affirm nor deny religious doctrine, so this argument has no place in court).

Oops.

Here’s a funny thing:  Our opponents have already accepted this thinking, whether they realize it or not. Their frequent argument against adoption by gays and lesbians? That it should be about the needs of the child, not the wishes of the adult. Surely, then, this applies not just to the wishes of gay and lesbian adults, but the wishes of homophobic ones, too. Either way, the needs of the child come first.

If you find yourself debating religious freedom with our opponents, remember two principles:

1. The issue is rarely about gays vs religious freedom. It’s generally something else — in this case, the needs of the child vs. religious freedom. Never be afraid to reframe the debate.
2. Most of the conflict about “religious freedom” is really about gays wanting the same rules to be applied to everyone. In this case, if the needs of the child trump the wishes of the adults, then that’s just as true for our opponents as it is for us.

Remember those two principles.  We’ll be coming back to them. For now, let’s get back to Robert George.

Robert George’s theocratic mindset

George argues that same-sex marriage will threaten moral and religious freedom. He opens with this dubious assertion:

Because the state’s value-neutrality on this question (of the proper contours and norms of marriage) is impossible if there is to be any marriage law at all, abolishing the conjugal understanding of marriage would imply that committed same-sex and opposite-sex romantic unions are equivalently real marriages. The state would thus be forced to view conjugal-marriage supporters as bigots who make groundless and invidious distinctions.

Is this true?

• First, is the state’s value-neutrality impossible?
• And finally, does legalizing marriage equality mean the government is calling its opponents bigots?

No, and no.

Is value-neutrality impossible? I don’t think so. For instance, some religions hold the only path to salvation is through Christ. Yet the government doesn’t merely allow other views to remain legal, it actually supports them.

• Congress opens each session with a prayer, and that prayer is not always Christian.
• The military has enlisted chaplains, not all of them Christians, and pays them with taxpayer money.
• Congress grants special legal status to Christian and non-Christian religions alike, granting them tax-exempt status and other privileges.

But this support for non-Christian religions doesn’t mean the government has devalued Christianity. So why would it be any different if the government allows both same-sex and opposite marriages?

This isn’t just an analogy. The principle seems to be the same:

The government is not taking a position on whether your religion’s view of salvation is correct when it gives equal support to multiple views.

The government is not taking a position on whether your religion’s view of marriage is correct when it gives equal support to multiple views.

The position on the left looks value-neutral to me. Why isn’t the one on the right? The view on the left is simply what’s mandated by the First Amendment. Paradoxically, George’s reasoning would seem to imply the First Amendment is actually a threat to moral and religious freedom.

Is that a surprise? This is where George’s theocratic mindset comes into play. In theocracies, if something is sinful then it’s forbidden. Which means if it’s not forbidden, then it’s officially not sinful. In such a mindset, if the government does not enforce your religion, then it must be saying your religion is wrong.

But that’s only for theocracies. Luckily, we don’t live in one.

George continues:

The state would thus be forced to view conjugal-marriage supporters as bigots who make groundless and invidious distinctions.

But the state doesn’t “view” anyone as a bigot, because bigot is not a legal term.

Putting that aside, would marriage equality send the message that opponents are bigots, as George believes? No. Once again: the government hires Jewish chaplains, but the government isn’t calling anyone a bigot for believing Christ is the only path to salvation. In fact, I bet many politicians who hold such religious views are happy to let the military enlist and pay Jewish chaplains, and not just because the Constitution demands neutrality.

George decries the loss of a freedom that did not exist.

George offers up examples of the threat to religious freedom. He doesn’t explore them in depth, and there’s a good reason why. Let’s pick the first one and examine it thoroughly.

Already, we have seen antidiscrimination laws wielded as weapons against those who cannot, in good conscience, accept the revisionist understanding of sexuality and marriage: In Massachusetts, Catholic Charities was forced to give up its adoption services rather than, against its principles, place children with same-sex couples.

George would have us believe this is an unprecedented assault on religious freedom. Catholic Charities didn’t recognize same-sex marriages, and didn’t want to place children with such couples.

But consider this:  The Church requires Catholics to be married by a priest — Catholics married by a justice of the peace or, say, a Baptist minister are not legitimately married in the eyes of the Church. Interestingly, though, it does recognize the marriage of non-Catholic couples married outside the Church.

Despite this, Catholic Charities did not have one policy for Catholics married outside the Church and and a different one for non-Catholics. That would violate discrimination law. Yet Catholic Charities did not choose to shut down over this violation of religious freedom.

Take it further. Maggie Gallagher, who founded the National Organization for Marriage with Robert George (and whom George cites approving in his article) believes “the only way to the Father is through the Son.” This belief is not uncommon in America. Surely it gives Christian adoption agencies a reason to place children only with Christian families — anything else could endanger the child’s soul.

Fortunately, Catholic Charities didn’t use this as an excuse to shut out Jewish parents.  This, too, would have violated discrimination law. Yet Catholic Charities did not choose to shut down over this violation of religious freedom.

Actually, George correctly identifies the issue here — it’s not about same-sex marriage, it’s about discrimination law. There’s an inherent tension between freedom of association and laws forbidding discrimination. This tension has been in place for decades. It predates the marriage equality debate. It would still be there even if same-sex marriage disappeared from the national consciousness.

I don’t mean to dismiss this tension. It’s something our nation has struggled and will continue to struggle with. It’s certainly worthy of debate. But it’s nothing specific to marriage equality. I’m simply left to wonder what George would make of these other cases. Why isn’t he fighting for the right of Catholic Charities to discriminate against Jews? Isn’t such a right implied by his argument?**

Remember the two principles I wrote about above.  They come into play here:

1. This is not about gays vs. religious freedom. It’s about discrimination law vs. religious freedom.
2. Gays and lesbians are simply asking that the rules (in this case, discrimination law) be applied to everyone equally. Catholic Charities was okay with the state’s infringement on its religious freedom until gays came into the picture. Which seems to imply it’s not about religious freedom after all.

Does George want us to call him noxious?

George makes a startling admission:

These points are not offered as arguments for accepting the conjugal view of marriage. If our viewpoint is wrong, then the state could be justified in sometimes requiring others to treat same-sex and opposite-sex romantic unions alike, and private citizens could be justified in sometimes marginalizing the opposing view as noxious.

He’s exactly right in that first sentence. If a law is just, we can’t reject it simply to avoid stigmatizing those who oppose justice.

The second sentence is the surprising one. It begins with a caveat, of course:  If our viewpoint is wrong…

That’s a tricky thing. Some propositions are easy to check:  San Francisco is north of Los Angeles? Granite floats in water? The nature of marriage is not one of those easy concepts. Honest disagreement is possible. It doesn’t seem like much of a stretch to amend George’s statement:

If proponents of marriage equality think our viewpoint is wrong, then they could be justified in sometimes asking the state to require others to treat same-sex and opposite-sex romantic unions alike, and they could be justified in sometimes marginalizing the opposing view as noxious.

I’m sure George would disagree with this. I’m curious about why.

Postscript

Our opponents frequently bring up Catholic Charities as evidence of our threat to religious freedom. They have a few other favorites as well. I dealt with them a couple years ago in this video. It seem appropriate to repost it here.

Next: George asks why the state should recognize same-sex relationships and really, really pisses me off.

* Personally, I would oppose barring adoptive parents solely based on their view of homosexuality as a sin. Having survived such an upbringing I can’t see it as a threat on same level as denying one’s child a blood transfusion or an insulin injection. But this is an empirical question and it deserves empirical inquiry. I just want our opponents to face the real issue and stop pretending that religious freedom means the right to treat your kids in any and every way your religion demands.

** This isn’t just rhetorical sputter on my part. It’s a real policy issue. A few years ago, the Church of Latter Day Saints’ adoption agency was on probation in Massachusetts because it only wanted to place kids with Mormon families — a violation of state discrimination law.