Same-Sex Marriage and Religious Freedom

I. Love is Foremost.

The action of the Indiana legislature in adopting a religious freedom restoration bill has provoked a maelstrom of invective against Christians.  If you only read your local newspaper, you may not appreciate the extent of it.

In this atmosphere it is crucial for us to remember that we are within the protection of God most high.  We must also remember that God loves gays (see April 1 post).  He calls us to pray for our enemies and to rejoice when we are persecuted:

Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of me.  Rejoice and be glad, because great is your reward in heaven, for in the same way they persecuted the prophets who were before you.  Matt 5: 11-12.

II. We Must Address the World’s Incomprehension of our Opposition to Same-Sex Marriage.

That said, something must be done to attempt to resolve the incomprehension with which we are met when we decline to be involved in gay weddings, for that incomprehension could do a great deal of damage to our communities.

A. Marriage is Sacred.

New York Times columnist David Brooks writes that there are many humane people who hold to the traditional view of marriage, and that they should be treated with respect and gentle persuasion – to which one Times reader responds,

How can anyone who is deeply humane define marriage in a way that excludes so many humans? If you are deeply humane, you should be able to fully embrace a belief system that includes heterosexual definitions of marriage while also welcoming those participating in same-sex marriages into your businesses and circle of friends.

Please listen carefully: I do welcome gays into my business and circle of friends.  Many in wedding services vocations do the same, such as Aaron and Melissa Klein, the Gresham, Oregon bakers who face penalties in the hundreds of thousands of dollars for declining to bake a wedding cake for two brides.  They are happy to sell their breads and cakes to gays – except their wedding cakes.  They treat their customers the same, except when it entails their own involvement in something to which they are conscientiously opposed.

Part of the misunderstanding stems from the fact that, depending on the circumstances of each particular case, involvement in the ceremony is a matter of degree.  Since making a cake entails relatively minor involvement, it may not be the best example.  Let’s sharpen the issue, by considering a slightly different scenario that entails deeper involvement: the wedding singer.  She does not merely produce a physical object and send it to the chapel: she must go to the chapel personally and use her voice and her art to sing lyrics celebrating homosexual love.  Depending on what kind of person she is, forcing her to do this could be a human rights atrocity of the first degree.  If she is a devout Christian, then for her the institution of marriage is provided to us by God as a microcosm of the relationship between the Son of God and His Church, which the Bible describes as the Bride of Christ.  (Paul’s letter to the Ephesian church, chapter 5, verses 22-33; Revelation 21:9.)  The Bible predicts that when Christ returns we will all be changed into His likeness: that is, all the shame and impediments of sin will fall away and we will be free to love as He loves, and there will be a great Wedding Feast (Revelation 19:9).  Not only is marriage sacred, but it represents the Christian’s deepest longings to be with her savior in a relationship of complete purity.  To think that the Christian wedding singer could think of marriage as anything else is delusional.

B. The Bible is the Inerrant Word of God.

The second key to understanding this question is to realize that the reason gay marriage remains a problem for many branches of the church is that for us, the Bible is the inerrant, inspired Word of God, which does not change.  As the Lord Jesus Himself stated, “Heaven and earth will pass away, but my words shall not pass away.”  Matthew 24:35.  We could not change our views about same-sex marriage, even if we wanted to.

And of course we don’t want to.  There are many things about the Bible which are hard to accept, even for Christians, and many which are simply difficult to understand.  But we have excellent reasons for believing that the Bible – yes, in its entirety – is the inspired Word of God, and hence that it is the means chosen by God to reveal His offer of forgiveness to men through the atoning work of His Son, who died to set us free from the guilt and power of sin.  If what the Bible says about any one topic, such as homosexuality, is unreliable, then we cannot know that what it says about another topic, such as forgiveness, is not also unreliable.  Thus without this high view of the scriptures as the very Word of God – all of it – there is no way to know whether the message about God’s forgiveness of sin is reliable or not.  To ask us to throw out the parts you don’t like is to ask us to jeopardize our very salvation.  It isn’t going to happen – not ever.  Christians in the First Century went to their deaths rejoicing for this message of God’s forgiveness.  If necessary, we will do the same.

Thus, those who counsel patience while we struggle with this issue, predicting that we will eventually get on board, are kidding themselves.  We are not struggling with the question of gay marriage.  We know what we believe about it, because the scriptures are clear.  But to advocates of forced participation in same-sex marriage, we say: We are also not struggling with you.  You are struggling against God.

C. Religious Liberty Matters.

The final key to understanding is to realize that those who advocate forcing Christians to participate in gay weddings are demonstrating deplorable ignorance about the nature of religious liberty.

Religious liberty is a human right.  Indeed, it is the source of human rights; for all human rights depend on a religious view of what it means to be human.

The view that humans are inherently valuable is rooted in the Bible – and nowhere else.  (If you think you know of another source of human rights, please instruct us.  You cannot do it.)  The Bible teaches that we have value and dignity inherently by virtue of who we are as humans: namely, beings who have been created in the image of God.

This is a religious view not merely because it derives from a religious text; it is also religious because it poses an answer to an inherently religious question: does it mean anything to be human, and if so, what does it mean?  It is a well-settled legal doctrine in American constitutional jurisprudence, that it is not whether one’s answer to such a question is theistic or not, or even whether your answer is affirmative or not, which makes it religious.  It is the question itself which is religious.  Therefore, any and every answer to this question is itself religious and therefore has protection under the religion clauses of the First Amendment to the Constitution of the United States.1

The Declaration of Independence expresses a weaker form of this same doctrine: “All men are created equal, and are endowed by their Creator with certain unalienable rights.”  This idea, more than any other, has been the glory and strength of America for almost 250 years.

The Indiana legislature realizes that forced participation in same-sex weddings threatens religious liberty and enacts a bill to protect religious belief and expression.  But then, because of political pressure and economic duress (a boycott is not a reasoned argument: it is a form of compulsion), it reconsiders, for the love of money and power, and realizes instead that religious belief and practice deserve protection unless it is a belief or practice concerning homosexuality, in which case they do not deserve protection.

We must pause to clarify something which is capable of causing a lot of confusion: according to my research, which admittedly has not been exhaustive, twenty-one states prohibit discrimination on the basis of sexual orientation2; many of those state anti-discrimination laws have religious exemptions, but generally those exemptions apply only to religious organizations, and they only cover employment; they do not provide exemptions for anyone engaged in the providing of public accommodations.  Twenty states have religious freedom restoration acts3  (“RFRA’s”), which are general in application but could be invoked to effect exemptions from anti-discrimination laws for individuals and businesses in the providing of public accommodations.4  However (and this is important), the list of states prohibiting discrimination on the basis of sexual orientation is not the same as the list of states which have adopted RFRA’s.  Of the 21 states which prohibit such discrimination, only three – Connecticut, New Mexico, and Rhode Island – have adopted RFRA’s.  Thus, in 18 states – not including Indiana, very interestingly – citizens providing wedding services may be compelled to participate in gay weddings regardless of their religious objections.  In those states, you are not permitted to believe that homosexuality is a sin; or if you do, you are not permitted to act in accordance with that belief; or if you do act in accordance with it, you may be fined, you may be publically humiliated, and you may be forced out of your chosen vocation.

Observe that the bill as originally adopted essentially would have restored the former US Supreme Court doctrine in such matters (as do the federal RFRA and the 20 state RFRA’s): an otherwise neutral public policy must not place a substantial burden on religious belief or practice unless the government shows both that the policy protects a compelling governmental interest and that the policy adopts the least intrusive means for protecting that interest.  Thus the original bill did not by its terms permit any type of discrimination: it merely recognized that forced participation in gay weddings has the potential of impairing legitimate expressions of religion and that the courts must have the authority to determine whether it does that, and if it does, whether the impairment is so serious as to justify exempting the religious claimant from such forced participation or not.

It is distinctly possible that some courts, if they had the opportunity, would rule against bakers, but in favor of singers.  They are different cases.  Again, to emphasize the point: the original act did not by itself authorize any form of discrimination, but merely recognized that citizens should have the opportunity to offer proof that under the particular facts of their situation, the burden to religious expression justifies asking the brides or grooms to obtain their wedding services from another merchant.

But as amended, the bill makes it the policy of the State of Indiana that where homosexuality is concerned, any burden on religious belief or practice is permissible.  In Oregon, and 17 other states, in the case of same-sex marriage, anyone offering goods or services which are used in gay wedding ceremonies must participate regardless of their religious beliefs and regardless of the severity of the burden on their religious expression, or they will be punished.

III. Should We be Expected to Keep Our Religion OUT of the Marketplace?

No.

Of the arguments in favor of forcing citizens to participate in same-sex marriage, perhaps the one most frequently made is that such a requirement is an appropriate legal condition for engaging in commerce.  That is simply incorrect.  The US Supreme Court has rejected that notion.  As it stated in Burwell v. Hobby Lobby Stores, Inc.,

In Braunfeld [v. Brown], 366 U. S. 599 [(1961)], we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims.  As the Court explained in a later case, the “exercise of religion” involves “not only belief and profession but the performance of (or abstention from) physical acts” that are “engaged in for religious reasons.”  [Employment Div., Dept. of Human Resources of Ore. v.] Smith, 494 U. S. 872 877 [(1990)].  Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition.  Thus, a law that “operates so as to make the practice of . . . religious beliefs more expensive” in the context of business activities imposes a burden on the exercise of religion. Braunfeld, supra, at 605; see United States v. Lee, 455 U. S. 252, 257 (1982) (recognizing that “compulsory participation in the social security system interferes with [Amish employers’] free exercise rights”).

. . . While it is certainly true that a central objective of for-profit corporations is to make money, modern corporate law does not require for-profit corporations to pursue profit at the expense of everything else, and many do not do so. For-profit corporations, with ownership approval, support a wide variety of charitable causes, and it is not at all uncommon for such corporations to further humanitarian and other altruistic objectives. Many examples come readily to mind. So long as its owners agree, a for-profit corporation may take costly pollution-control and energy-conservation measures that go beyond what the law requires. A for-profit corporation that operates facilities in other countries may exceed the requirements of local law regarding working conditions and benefits. If for-profit corporations may pursue such worthy objectives, there is no apparent reason why they may not further religious objectives as well.  [Burwell v. Hobby Lobby Stores, Inc., slip opinion, 27-29 (US, 2014).]

Thus the Court in Hobby Lobby stated that enforcement of the requirement of the Affordable Care Act that employers provide health care insurance coverage for abortifacient contraceptives was a violation of federal RFRA because such enforcement “would effectively exclude these people from full participation in the economic life of the Nation.  RFRA was enacted to prevent such an outcome.”  (Slip opinion, 52.)

Right now, that is the direction which events are taking.

IV. An Appeal to Our Fellow Citizens.

The conversation to date has been dominated by advocates of same-sex marriage, about 80% of whom dismiss religion-based claims of exemption as signs of bigotry.  Another 10% dismiss them as signs of ignorance.  Such pronouncements have the effect of excluding Christians from the conversation, and I respectfully submit that this is a perilous course.  If we begin the punishment of religious believers who for religious reasons cannot participate in gay weddings without affording them so much as a day in court, the consequences are unpredictable.  What we know is that no one can readily accept a policy in the forming of which they had no voice, and no one can easily accept punishment without the right to a hearing.  Therefore we should stop insulting one another.  We should begin respectfully listening to one another, and engage in a common effort to discover a common basis on which we can live together in peace.

ENDNOTES

1Torcaso v. Watkins, 367 U.S. 488 (1961); United States v. Seeger, 380 U.S. 163 (1965); Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979); Rhode Island Federation of Teachers v. Norbert, 630 F.2d 850, 854 (1st Cir. 1980); Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025 (1st Cir. 1981); Grove v. Mead School District No. 354, 753 F.2d 1528, 1534 (9th Cir. 1985); Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986).  In Christofferson v. Church of Scientology, 57 Or App 203 (1982), the Court said, “We find that, while beliefs relating to the existence of, and man’s relationship to, a God are certainly religious, belief in a traditional, or any, `god’ is not a prerequisite to a finding that a belief is religious,” citing Torcaso v. Watkins, and Malnak v. Yogi, both supra, among other cases.  57 Or App at 240.

2https://www.aclu.org/maps/non-discrimination-laws-state-state-information-map.

3http://rfraperils.com/states/.

4Additionally, the courts in eleven other states have adopted similar standards by judicial decision.  http://www.wsj.com/articles/the-new-intolerance-1427760183.

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1 Response to Same-Sex Marriage and Religious Freedom

  1. I so much appreciate your thinking on this very critical issue. You’ve done us all a great service by sharpening the example from bakers to singers. You’re right, I suppose, that a court might be find in favor of the singer, but I can very well imagine a professional wedding singer declining an engagement and being dragged into court because he or she was discriminating.

    Like

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