Same Sex Marriage, the Courts, and Religious Liberty: How Much of a Conflict?
Rod Dreher makes the case, once again, that same-sex marriage presents a unique and unavoidable conflict that will drastically undermine religious liberty in this nation, concluding that the ”conflict between gay rights and religious liberty is deep, serious and irresolvable to the satisfaction of both.” Dreher further argues that:
“It’s one thing if the boundaries of gay rights are set by statute, as in the DC case. It’s another if they are set by a court in a constitutional case. In the former, exemptions for religious organizations can be carved out — but if the Supreme Court decides that gay marriage is a constitutional right, then religious organizations will be given much less room to move, and there’s nothing they will be able to do about it.”
On both counts, Rod misunderstands the nature of the conflict and the role of the legislature and courts in creating (or potentially alleviating) that conflict.
First, the conflict here is definitively not between gay marriage and religious liberty. It is instead between laws regarding private discrimination and freedom of association, or perhaps between licensing laws and freedom of religion. As they affect the private sphere and specifically religious organizations, gay rights, and specifically same-sex marriage, represent at most an expansion of existing conflicts rather than any new type of conflict. Even here, the conflict arises not from whether or not same-sex marriage is permitted, but instead from whether or not statutory laws recognize sexual orientation as an impermissible basis for private discrimination (whether in an employment context, public accommodations context, or otherwise), which is independent of whether same-sex marriage is permitted.
November 17, 2009 20 Comments
