A Political Scientist Warns of the Gathering Storm: Same-Sex Marriage Will Threaten Religious LibertyBy
At Public Discourse today, Matthew Franck, a political scientist (full disclosure: also a friend of mine), argues that the advance of same-sex marriage will likely prove incompatible with traditional conceptions of religious liberty. He begins with an interesting, important, but little noted point: namely, that many “conscience exemptions” given by states in relation to same-sex marriage are presented as compromises of secular progressives with the concerns of religious traditionalists, but should not be considered as compromises at all. The reason? These exemptions merely guarantee that clergy cannot be compelled to officiate at same-sex marriages, or be penalized for not doing so. But, as Franck observes, nobody doubts that they would enjoy such an immunity in any case under the First Amendment. Such exemptions are a kind of phony concession, securing in state law a right already secured by the Constitution.
Franck raises a number of other troubling questions for the future, if same-sex marriage should become a right and the law of the land. Will public accommodations law be applied against religious businesses or individuals who in conscience do not wish to be implicated in same-sex marriage? That is, if churches and ministers are exempt from having to give their sanction to same-sex weddings, will, say, owners of facilities for rent, or photographers, come within the ambit of such laws and be subject to legal action simply for refusing to participate professionally in such weddings? In another area of the law, will religious institutions that maintain, and try to live according to, the traditional definition of marriage be permitted to maintain their tax-exempt status?
Franck is an expert in constitutional law, and he makes his case in detail, in relation to the relevant areas of law and Supreme Court precedents. The most powerful part of his argument, however, is his recognition of what might be called the moral force of the position in support of same-sex marriage, a force that arises from its own moral logic. The proponents of same-sex marriage have not merely presented it as something they think justifiable as public policy, while recognizing that others of good will might disagree. Instead, they have opted for scorched earth rhetoric, accusing their opponents of being bigots, the modern day equivalents of the benighted racists of the 1950s and 1960s. But if the defenders of traditional marriage can be written off as bigots, then it will be easy for our governing institutions to conclude that they have only minimal rights worth protecting: a right to think what they want, maybe a right to say what they want, but hardly any right to live as they want.
I highly recommend the whole article, which you can read here.