Douthat, Marriage and Religious Freedom


Russ Douthat is a relatively rational conservative who accepts that same-sex marriage is pretty much inevitable. But in a post at the New York Times he argues that there still need to be protections for religious freedom — and pretends that how much protection there is will depend on the magnanimity of equality advocates.

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today. And I can imagine a scenario in which a more drawn-out and federalist march to “marriage equality in 50 states,” with a large number of (mostly southern) states hewing to the older definition for much longer than the five years that gay marriage advocates currently anticipate, ends up encouraging a more scorched-earth approach to this battle, with less tolerance for the shrinking population of holdouts, and a more punitive, “they’re getting what they deserve” attitude toward traditionalist religious bodies in particular. If religious conservatives are, in effect, negotiating the terms of their surrender, it’s at least possible that those negotiations would go better if they were conducted right now, in the wake of a Roe v. Wade-style Supreme Court ruling, rather than in a future where the bloc of Americans opposed to gay marriage has shrunk from the current 44 percent to 30 percent or 25 percent, and the incentives for liberals to be magnanimous in victory have shrunk apace as well.

But this simply is not true. The degree of religious freedom on this is controlled by a wide range of laws and judicial precedents that are very unlikely to change. The obvious analog is interracial marriage. The law says that the government cannot ban interracial marriage, but have we ever forced a church to perform such a marriage? No. And we never will. The free exercise clause of the First Amendment, more than a century of court cases defining the ministerial exception, the Religious Freedom Restoration Act and dozens of similar state laws make that an undeniable reality.

But the opponents of equality argue that such exceptions should be given to any religious person who object to any accommodation with same-sex weddings, even in their businesses (but such exceptions, most argue, should only apply to those with “sincerely held religious beliefs” — another example of Christian privilege in action). And this, too, is already determined by existing law and, again, the case of interracial marriage makes this clear. A church does not have to perform an interracial wedding, but if you have a business — defined in the law as a “public accommodation” that is open to the public — then you cannot refuse service on the basis of race (or religion, or gender, or age, etc).

The degree to which such laws violate religious freedom is precisely the same in sexual orientation as it is in race. Just as there are some business owners whose “sincerely held religious belief” compels them to want to discriminate against gay people, there are also some business owners who “sincerely held religious belief” compels them to want to discriminate against blacks, women, Muslims, atheists and so forth. Except that sexual orientation is not a forbidden basis for discrimination at the federal level, so state law will determine who gets to discriminate and who doesn’t. So the reality is that more Christians will be allowed to discriminate against gay people while none can discriminate against black people or women (at least legally; it does happen, of course).

For those who claim this is a violation of religious freedom, the real question must be obvious: If you demand the freedom to discriminate against gay people in your businesses, shouldn’t you also be free to discriminate against black people? And shouldn’t others be able to discriminate against you because they don’t approve of Christians? There are some folks on the fringe, mostly libertarians, who would take that position, but Douthat certainly wouldn’t. I’m sure he fully supports the Civil Rights Act anti-discrimination protections. So why does he think that we should carve out an exception only for religiously-motivated anti-gay bigotry and not for any other form of religiously-motivated bigotry?

Comments

  1. raven says

    Russ Douthat is a relatively rational conservative…

    I’ve never seen that at all.

    He is a Catholic defender, one of the few and last.

    Most of what he has written that I’ve seen is so stupid and pathological, it is amusing.

  2. tbp1 says

    Indeed, in all the hysteria about recent USSC decisions, those poor oppressed cake bakers and wedding photographers who have terribly persecuted for not providing their services to gay couples have been referred to constantly. The question I keep asking, and keep not getting answered is, “OK, then, to what extent do we allow anyone to simply ignore any law they don’t agree with, as long as their disagreement is religiously motivated? Where and how do we draw the lines?”

    Deafening silence. Or when I do get a reply, what it comes down to is “I and those who agree with me should be exempt from the law, but not those other guys.” No one puts it in just those words, of course, but that’s what it parses out to.

    It ought to be perfectly clear that that way lies anarchy. While I’m not totally unsympathetic to business owners in such a situation, as far as I’m concerned, if your business is open to the general public, it should be open to anyone who walks through the door with money to spend. A bakery is not a church, and a privately owned business isn’t “private” in the same way your home is. When you open a business you accept it that there are regulations and restrictions that don’t apply to your private life.

    So-called “conscience clauses,” whether religious motivated or not (and in practice are essentially always on religious grounds), are a really, really bad idea.

  3. matty1 says

    I wonder how Mr Douthat would feel about protecting the religious liberties of a Muslim who had a profound religious belief about not allow Christians in his shop?

  4. alanb says

    Yeah, it’s a shame that opponents of white supremacism and anti-Semitism are so intolerant. I sure hope that marriage equality advocates don’t go down that path.

  5. elly says

    “…and the incentives for liberals to be magnanimous in victory have shrunk apace as well.”

    I have exactly zero interest in being “magnanimous in victory,” particularly since the people supporting “traditional marriage” are also supporting oppression on other fronts. The sooner their numbers shrink to 25% or less, the better off we’ll all be.

    This line from Trudy at Gradient Lair was too good not to steal, as it seems appropriate to this discussion too:

    “If the privileged measure their freedom based on how much they can oppress or not, they know nothing of actual freedom. Nothing.”

  6. Alverant says

    The problem with the libertarian “logic” of allowing any business to discriminate against anyone for any reason is that it puts minorities of all sorts into a bind. If a business owner feels their opinions are worth some profit, then it’s OK to make things harder on someone else. So if most business owners in an area decide they don’t want to have [insert group here] as customers then it would effective drive those people away. That’s fundamentally wrong.

    OTOH no one is going to risk discriminating against the majority of their customers.

  7. tbp1 says

    @6: Yes. And besides that, before the civil rights struggle, even businesses owners who wanted to serve blacks or other minorities (whether for moral reasons, or simply because money is money) were afraid to do so because of backlash from other customers. I don’t know what the numbers are, but I imagine a lot of business owners were perfectly happy when the law started prohibiting discrimination in public accommodations, even if some said otherwise in public.

  8. says

    But this simply is not true. The degree of religious freedom on this is controlled by a wide range of laws and judicial precedents that are very unlikely to change.”

    No. It’s right there in the Supremacy Clause. “HomoLaw reigns supreme over HeteroLaw”. Kind of surprising to find in the Constitution, really.
     

    So why does he think that we should carve out an exception only for religiously-motivated anti-gay bigotry and not for any other form of religiously-motivated bigotry?”

    Because one is his and one isn’t. Duh.
     
    alanb “Yeah, it’s a shame that opponents of white supremacism and anti-Semitism are so intolerant. I sure hope that marriage equality advocates don’t go down that path.”
    +1 internet.

  9. francesc says

    @2
    ” those poor oppressed cake bakers and wedding photographers who have terribly persecuted for not providing their services to gay couples have been referred to constantly”
    I have a collateral comment, I imagine that if anyone really don’t want to be the photographer on a same-sex marriage he could often think of a plausible excuse, the problem being that, in that case, the couple wouldn’t know of your dissaproval and bigotry. Also, you couldn’t market yourself as a non-gay business.

    Is this “in your face, I’m better than you” a fundamental part of bigotry? Is it not only about their rights to discriminate, but about their “rights” to do it while spitting on you?

  10. Chiroptera says

    You know, Douthat seems to be confirming what I suspect: the anti-gay side not only realizes that they have lost the legal battle, but they also are becoming increasingly aware that they are on the wrong side of history, that in a couple of generations anti-gay bigots will be small, despised minority forced to wear sheets over the heads at their meetings, and that future generations will view gay equality opponents in our time the same way we view protesters against the Little Rock Nine: hateful bigots who delayed as much as possible the progress of decency.

  11. A Hermit says

    I left this comment on Douthat’s article:

    Eight years ago same sex marriages were legally recognized in Canada. Since then there have been exactly zero lawsuits over the issue; no religious institution has been asked to abandon it’s beliefs or practices and the sky has not fallen.

    My wife of thirty years and I have noticed that our own relationship has been a little more fabulous perhaps. I’m not sure that’s at all related to the fact that our gay and lesbian friends relatives and neighbours now have the same legal rights protections and obligations in their relationships that we do, but I am a sucker for a good love story and seeing their joy reminds me of my own. If anything it has only strengthened this heterosexual, traditional marriage.

    Religious institutions have always had the right to refuse sacraments; but religious liberty should allow those religious institutions which do approve and perform weddings for same sex couples to have those marriages given as much respect as any other.

  12. skemono says

    A church does not have to perform an interracial wedding, but if you have a business — defined in the law as a “public accommodation” that is open to the public — then you cannot refuse service on the basis of race (or religion, or gender, or age, etc).

    I am reminded of the recent case that ruled that corporations can count as “persons exercising religion”. So I have to wonder if this statement will at some point get contradicted by a ruling.

  13. cjcolucci says

    While everything Ed says is true, it misses the point because Ross Douthat simply isn’t talking about anything recognizable as “religious freedom.” Not even RD thinks that churches will have to bless same-sex marriages if their doctrine does not permit it. Not even RD thinks same-sex marriage will be mandatory. The only “freedom” RD is talking about is the freedom not to be thought ill of. What he resents and fears, and may well be predicting accurately, is a time when people with what they have been brought up to think of as actual reasons for opposing same-sex marriage will be thought badly of. He writes about religiously-based homphobia being treated like anti-Semitism or white supremacism, but that isn’t a “freedom” issue. Anyone is free in America to believe in and espouse white supremacy or anti-Semitism without legal consequence; no one in America is free to believe in and espouse white supremacy or anti-Semitism without social consequence. RD and his pals may have hurt feelings now, and will probably feel worse in the future as they become even more “radioactive,” but that’s not a “freedom” issue. RD and his pals have had the whip hand for too long. If they can’t help but whine, they should at least whine about their real issues, not about a loss of “freedom.”

  14. tbp1 says

    @9: Yep, really all a photographer would have to do is say, “Sorry, all booked up that day.” Probably a baker could do the same—pretend to have other big orders due that day and just can’t take on another one, but what would be the fun in that?

  15. sathyalacey says

    I’m beyond tired of the anti-equality side being successfully reframed as a “religious liberty” stance.

    I don’t see them standing up for the religious liberty of churches who see nothing wrong with gay marriage, who will happily perform sacraments for gay members of their church.

  16. Nick Gotts says

    cjcolucci@13,
    Exactly right, as I read Douthat. He wants supporters of marriage equality to:

    leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today.

    He wants us to accept religiously-based heterosexist bigotry as morally and intellectually respectable.

  17. Chiroptera says

    cjcolucci, #13:

    Yeah, I suspect many of these clowns are beginning to realize that in a couple of generations their grandchildren are going to look at them with utter amazement on their faces and ask, “Really? How could you have not realized that you were so terribly and utterly wrong?”

  18. cptdoom says

    …with a large number of (mostly southern) states hewing to the older definition…

    Douthat does realize that straight people can still get “traditionally” married in equality states, right? He must know that any church, any organization can still promote the “one-woman, one-man” message all they want, in the same way we can all make fun of Mark Sanford’ Appalachian Trail escapades.

    That’s what really ticks me off about people who claim to be “supporters of traditional marriage,” when they really are simply anti-same-sex marriage. I support traditional marriage, all the gays and lesbians I know support traditional marriage. I have 17 first cousins and have been to no fewer than 15 of their marriages, complete with fabulous gifts and bad dance moves. One set of grandparents was married for close to 40 years, the other set for over 55 years. My parents were married for nearly 35 years – all of those marriages ending only in the death of one partner. My sister has managed more than 20 years with the same husband (first marriage for both – and they still hold hands, it’s gross). I support all these marriages. I just want the chance for bad gifts myself.

  19. says

    No need to worry, Mr. Douthat. Gay people (and gay marriage advocates) do not plan to treat you as badly as you treated them.

  20. Michael Heath says

    Ross Douthat isn’t the only conservative worried that the normalization of gay marriage will better expose conservative Christians’ individual bigotry and that of their institutions – especially their churches. It’s been all over the media the past several days. Ralph Reed on yesterday’s Meet the Press being Exhibit B.

  21. says

    Many of the same bigots who want to be able to privately discriminate against LGBT people because their religion requires it are very frequently the same people who argue that marriage equality is a slippery slope leading to polygamy (which they are against). Do they not realize that these positions are incoherent. Mormon fundamentalists engage in polygamy, and bans on it violate MF’s freedom of religion. But while those bigots have no problem violating the religious freedom of MF’s, they demand freedom of religion to discriminate against LGBT people. In other words, those people have a completely unprincipled position, approving of violations of religious freedom solely based on whether they agree with it.

  22. marcus says

    elly @ 5 Thank you for sharing that exquisite anf astute quote. Whatever its origin, it is pure gold. I’m stealing it too.

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