BLOGGERMichael Kessler is Associate Director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, a Visiting Assistant Professor of Government, and an Adjunct Professor...
Ethical values, based on religion and reason, shape the kinds of law and policy citizens desire to govern their community. At the same time, the law shapes how we become moral persons and the kinds of communities we hope to build. Law, morality, and religion are intertwined. Yet ideologically-charged policy debates, the grittiness of political compromise, and the impersonal rule of law often don't correlate with--and can even damage--our deepest religious and moral commitments. We talk about law achieving a just order, but we too often struggle to develop notions of justice that rise beyond "efficiency" measured by markets and the "balancing" of preferences. Just Law and Religion rejects the cynic's reduction of law and politics to an amoral arena of clashing interests. It recognizes the crucial role of law and policy in achieving social stability, but focuses on how fundamental rights and moral values both shape and are shaped by contemporary legal and political institutions. Just Law and Religion will take the "moral temperature" of current events and issues across a vast array of political institutions, law, and culture in order to comprehend the ethical stakes, and the promise and perils, of our common life. Just Law and Religion asserts that law and politics can only be âjustâ when they concede there is more to human value and meaning than legal and political institutions can achieve.
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Religious Exemptions for Same-Sex Unions
May 1, 2009
I thought that would be the headline after the Miss USA pageant. In fact, the pageant was just one of several same-sex-related events this past month that must have made social conservatives think the apocalypse was hurtling towards them.
First, there was the Iowa Supreme court's landmark ruling on April 3, which held that the state's equal protection clause required the state to treat all citizens equally in applying for licenses to wed--both heterosexual and homosexual couples. The unanimous court said they were "firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective."
Surely, though, the religious liberties of some will be impacted by this ruling, if their convictions teach them that marriage is for a man and woman and gays are pathologies of God's intention for nature.
Then, in the past few weeks, a number of states--Connecticut and New Hampshire most recently--have legislatively secured the right of same sex couples to marry. More states are considering legislation. The legislative path, of course, undercuts the conservative culture warriors' claim that a few robed elites are forcing this down the throats of a reluctant (or outraged) citizenry. Instead, these measures were passed by the suited elites in the state legislative chambers--surely more representative of the peoples' will?
Notable in both of the Connecticut and New Hampshire legislation have been explicit protections for religious liberty. The scope of the exemptions varies, but they are intended to allow clergy and religious groups the opportunity to avoid participation in same-sex marriages without running afoul of anti-discrimination laws. Some proposals include extending the exemption to individuals, even those who are serving in public office, or offering a business service.
Connecticut's bill, signed into law last week, was immediately amended to include an exemption for religious organizations such that they will "not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for [them]... is related to the solemnization of a marriage...and such solemnization or celebration is in violation of their religious beliefs and faith." However, language that would have extended this exemption to individuals and business owners was not included.
Thus, Connecticut churches need not accommodate same-sex marriages, but florists and caterers may not have the same option.
Into this "moral chaos" as some want to describe it came the young Carrie Prejean, Miss California, who sent Miss USA pageant judge Perez Hilton into a frenzy of disdain with her response: "I think that I believe that a marriage should be between a man and a woman."
If boldness of conviction was being scored, then Ms. Prejean would have won when she replied to Hilton's question about whether all states should legalize same-sex marriage.
The religious right overnight embraced her as their young, fresh face. No offense to the youngish Ralph Reed, but she certainly has a new look that may garner more attention from the NASCAR men of the Republican Party than James Dobson or Pat Robertson ever did.
This past Sunday, she appeared at the Rock Church in Point Loma, Calif., and expressed no regrets: "I don't take back what I said. No way I wasn't going to stand up for what I believe in . . . This is how I was bought up to believe," she told the congregation. "We have to be strong and true to our faith and our beliefs."
Good for her, I guess. I'm torn in my response, since I cherish religious liberty and prize freedom of speech and expression. They are basic values that must not be compromised even if I disagree with the person's position. If the KKK wants to march in Skokie, they have a right to peaceably assemble and state their religiously-inspired views, too. I don't have to agree and can argue vigorously in favor or dissent.
But we also cannot tolerate limiting access to legal protection or enjoyment of rights because a traditional minority (or even a tyrannical majority) thinks that some group is acting against God's will. Constitutionally, they have every right to participate on an equal footing in certain legal contracts just like everyone else. (And I agree with Doug Kmiec and others who argue that the state's interest in marriage is about the legal union for the purposes of various financial and contractual relations--not some sacred endorsement. That's the business of religion).
These religious exemptions are probably a good compromise position for the inevitable conflict between the basic moral goods of free exercise of religion and equal protection/access of the law. Persons like Miss Prejean who do not want to provide flowers or psalms at a gay wedding would be able to privately bow out. Gay couples could still seek the protections of legal union. Whether that should be called "marriage" I am not advocating for or against.
However, the arguments for religious exemptions do seem to encounter one hurdle that I have yet to see surmounted. There are significant parallels between the movement for denying same sex unions under law, and laws that promoted and perpetuated racial discrimination. Just like some churches of today who preach about God's will and the abomination of gay marriage, so too did some churches of yesterday discern God's intention for separating the races and keeping the "inferior races" at bay.
And it is an obvious problem if you watch the National Organization for Marriage's new ad campaign. The much-parodied spot is called "A Gathering Storm." It has an earnest if gloomy tone, and its aesthetic, as Stephen Colbert described it, is "like watching the 700 Club and the Weather Channel at the same time."
According to the ad, a "rainbow coalition . . . coming together in love" is concerned that they are being required to accept gay marriage in their workplace, schools, and their daily public life. They do not want to be forced to accept something against their religious convictions. "Keep your gay unions away from me and my kids" is the gist of the ad. My guess is NOM would rather not have gay marriage at all, rather than accept it with the provision for religious exemptions.
Watch the advertisement and substitute the words "racial integration" in for "gay marriage" or "same sex marriage." This exposes the thorny issue for religious exemptions.
There are certainly some differences between judging people based on race, and judging people based on their sexual identity. However, in this instance, I am not convinced that those who call for religious exemptions from anti-discrimination laws have differentiated themselves from the parallels to racial discrimination. I would like to see advocates make that distinction more clear.
Miss Prejean has every right to her convictions--and I applaud her for stating them. Going further and denying other people access to enjoyment of their fundamental privileges and immunities of citizenship because of her convictions is inappropriate.
At the same time, those like Miss Prejean who do not want to participate in what they find repulsive because of their religious convictions should be able to enjoy the protection of that religious liberty.
We have a lot of compromising ahead of us in the coming years.