Democracy and Dissent, Dignity and Tolerance: Thoughts on Same Sex Marriage

It was a cartoon clipped from a magazine, which one of my high school teachers put up on the bulletin board in his classroom.  It depicted two men in a bar, one seated on a stool and the other sprawled on the floor looking up at him. The caption read:

Of course you have a right to your opinion.  It just happens to be my policy to hit people I disagree with.  It may be a good policy, or it may be a bad policy, but you’re entitled to think what you want about it.  That’s democracy.

That cartoon obviously made an impression on me, since I still remember it four decades later, but it’s been quite some time since I gave it much thought.  What brought it to mind now was Frank Bruni’s recent op-ed column, “Your God and My Dignity”, in the Sunday Review section of the New York Times (1/11/15).  In that op-ed, Bruni claims to “chafe” at the notion that the impending triumph of same sex marriage has the potential to be a threat to religious liberty.   Bruni, who identifies himself as a gay man, is understandably happy about “the rapid advance of same sex marriage,” a process that he describes as “[e]quality increasingly being enshrined into law.”   But he sees one potential dark cloud on the horizon:

 According to many of the Americans who still cast          judgment on us, our “I do” somehow tramples you, not merely running counter to your creed but running roughshod over it.

Bruni dismisses as “absurd” the notion that commercial businesses — even those whose principals have indisputably sincere religious objections – should not be compelled to provide services for same sex weddings.  To allow such businesses a religious conscience exemption, in his view, would be “an example not of religion getting the protection it must but of religious people getting a pass that isn’t warranted…”  Those who claim such an exemption , he writes, are using their religious beliefs as a “fig leaf for intolerance.”  Seeking to don the mantle of the civil rights movement, as have many same sex marriage supporters in recent years, he argues that “racists have used the same argument to try to perpetuate segregation.”  In what he no doubt intends to be a rhetorical question, he asks: “why should a merchant whose version of Christianity condemns homosexuality get to exile gays and lesbians?”

Say what?  If same sex couples, in order to protect the religious liberty of their fellow citizens, are forced to use their second favorite photographer or florist, is that really the equivalent of being “exiled”?  For that matter, why would a same sex couple want to use service providers who believe that their celebration is sinful?  There is an intangible artistry in many such services that may be diminished, despite a service provider’s best intentions, if he or she is ambivalent about the propriety of the event.  It’s hard to understand why same sex couples would want to use such service providers – unless, of course, their goal is not to enhance their personal joy at the celebration but to score political/ideological points.

Unless Bruni has an inside source at the United States Supreme Court, the timing of his op-ed was fortuitous.  Less than a week after it appeared in the Times, the Supreme Court agreed to decide whether the Constitution requires the states to permit same sex marriage.  The Court’s decision on that issue is expected at the end of its current term, in June or July.

If the Supreme Court finds a constitutional right to same sex marriage – and there is good reason to consider that the most likely result – then, the first phase of the battle for the redefinition of marriage will be over.  In that event, whether we supporters of traditional marriage like it or not, the legal right of same sex couples to marry will have been firmly established.

But even if the Court proves unexpectedly reluctant to take that step, it probably won’t matter much in the long run.  The impending triumph of same sex marriage is not primarily a result of judicial overreach, but rather of a rapid change in public opinion. The Times news story reporting on the Court’s action gloated: “The pace of change on same sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.”  The wording of that sentence hardly displays the journalistic objectivity to which our self-designated “newspaper of record,” usually claims to aspire, but factually it’s hard to dispute.

Thus, regardless of how the Court decides the cases now before it , it is highly likely that the legal right to marry someone of the same sex will be firmly established within the next few years. If the Supreme Court allows it, perhaps a few states will be holdouts in refusing to permit such marriages to be solemnized within their borders.  But if a substantial majority of the states allows them, it’s hard to imagine the holdout states being permitted to withhold recognition of such marriages when solemnized in states where they are lawful.

That doesn’t mean that the struggle to salvage traditional marriage is over, merely that it will be fought on a different battlefield.  It will primarily be a struggle for the hearts and minds of the American people, but it will inevitably have a legal/political component. That component will focus not on the rights of same sex couples, but rather on the rights of those who wish to dissent on religious grounds from this latest manifestation of political correctness.  The rights of those whose livelihood comes from providing ancillary services for weddings will not be the only element of this struggle, but it will probably be the earliest.

While the reason that public opinion on same sex marriage shifted so rapidly is too complex a subject to tackle in this post, Americans are a naturally tolerant people, who generally favor a “live and let live” approach to moral issues.  To overcome that natural tolerance, the defenders of traditional marriage needed to articulate a rationale for opposition that the general public could embrace.  This, clearly, they have not been able to do.

We can’t predict every circumstance in which the triumph of same sex marriage might threaten the religious freedom of dissenters.  There is no need to speculate, however, about its potential infringement on the religious freedom of wedding service providers whose religious principles conflict with the radical redefinition of marriage. Already in some states, attempts to compel service providers to ignore their consciences have resulted in litigation.  The targeted providers have included a baker in Colorado, a photographer in New Mexico, a wedding chapel in Idaho and a florist in the State of Washington.  Advocates of same sex marriage in general — and Bruni in particular — seem to believe that they have fulfilled their obligation to religious freedom by assuring us that “no clergy member will be compelled to preside over gay nuptials.”  Well, that’s certainly a relief.

I would like to believe that the courts will be at least as diligent in protecting the religious freedom that was among this country’s founding principles as they have been in protecting the newly discovered right to marry someone of the same sex – but it’s hard to be optimistic on that point.   I wrote recently (https://blogs.timesofisrael.com/american-jews-and-religious-freedom/) about the Supreme Court’s evisceration of the Constitution‘s protection of religious freedom beginning with its 1990 decision in Employment Division v. Smith.  As I pointed out there, not only has the Court refused to recognize a constitutional right to accommodation of religious practice, it has also precluded Congress from establishing such a right by federal statute, other than as applied to federal agencies.

Thus, the primary route open for protecting religious conscience in this new phase is through state legislation.  Only thirteen states have so far enacted state versions of the federal Religious Freedom Restoration Act.  Obtaining passage of such acts – or, when feasible, of their adoption as part of state constitutions — in the rest of the states should be the highest priority for supporters of traditional marriage.  Not only would even a few successes send a message of government neutrality on the morality of same sex marriage, but it would also be an important step toward reversing the judicially initiated erosion of religious freedom over the past quarter of a century.

If the whole point of the struggle for same sex marriage was  to confer on same sex couples the legal benefits of marriage –– and that is how many of its advocates sold it — then a Supreme Court decision precluding the enactment or enforcement of restrictions, whether accomplished politically or judicially, would indeed be the end of the battle.  Religious traditions differ, on that as on so much else, so the role of government should be to stay neutral.  Live and let live.

But for some advocates of same sex marriage – Frank Bruni obviously among them – equal rights and government neutrality were never the ultimate goal, merely a transitory milestone on the road to societal legitimization of same sex relationships as the social and moral equivalent of heterosexual ones.  For those who seek that goal, live and let live is a tactic, not a principle.  Bruni favors compelling service providers to participate in celebrations that violate their religious principles because he sees disagreement with his position on this issue as being fundamentally illegitimate.

To me, Bruni sounds an awful lot like the man in the cartoon which I described at the beginning of this post.  Of course you’re entitled to your religious beliefs, Bruni wants the government to tell religiously motivated supporters of traditional marriage.  It just happens to be our policy to penalize those we disagree with.  It may be a good policy, or it may be a bad policy, but you’re allowed to complain about it, as long as you know it can’t do you any good.  That’s democracy – or at least our version of it.

In a sense, supporters of traditional marriage should be grateful to Bruni for being so forthright about his anti-religious bigotry.  His disdain for religion may be rooted in the struggle for gay rights, but its implications are far broader.  He claims to “respect people of faith” (including some of his best friends, perhaps?), but he has a narrow view of the place of religion in a democratic society.  He “support[s] the right of people to believe what they do and say what they wish – in their pews homes and hearts” – but not apparently, in the public square.

That’s democracy?

 

About the Author
Douglas Aronin is a retired attorney living in Forest Hills, Queens, who is continuing his lifelong involvement in the Jewish community. His writings have appeared in a wide range of print and online forums.
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