This past weekend I got into a discussion on Facebook with some friends of mine over Damon Linker's latest (and, I think, very smart) opinion piece. Damon makes the argument that, given that the movement towards the broad legalization and public acceptance of same-sex marriage in America is probably inevitable--which he calls an "astonishing cultural and political sea change, one that looks likely to expand significantly the frontiers of liberty and equality in the United States"--specific legal provisions need to made to make certain that religious traditionalists (which, in regards to the acceptance of same-sex relationships, basically described my position for years, until I finally realized that I couldn't accept my own arguments and changed my mind) can continue to teach and witness in the way their beliefs obligate them to. When I linked approvingly to his essay, I was challenged: why? What is it about churches and religious organizations that deserve any particular First Amendment protections beyond those already conveyed to individuals who expressed politically unpopular, even bigoted, opinions? In retrospect, I think my responses to that challenge on Facebook were a little confused, so I wanted to write something at greater length here.That is not to say that the challenges to Damon's piece are entirely clear either, as I'm not sure that Damon is calling for anything beyond a reasonable interpretation of standard First Amendment protections anyway. What he does talk about--"taking concrete, legal steps to guarantee that the religious freedom of traditionalists is recognized and protected....[and] build[ing] on what states such as Connecticut and New Hampshire have already begun to do: include passages or amendments in same-sex-marriage legislation that explicitly define and protect the religious freedom of sexual traditionalists"--sounds to me like making use of principles already at the heart of arguments over the Free Exercise clause of the First Amendment. He is saying that when the coming legal changes to accommodate same-sex marriage (with all its consequences for divorce, child custody, adoption, and more) make their way through all the different institutions of civil society--hospitals, adoption agencies, schools, libraries, etc.--we ought to provide firm exceptions and protections to those whose religious views lead them to condemn and push back against such arrangements. In other words, he calls us to follow the line charted by such Supreme Court decisions as Sherbert v. Verner, Wisconsin v. Yoder, or Presiding Bishop v. Amos, all of which suggest that any regulation or lawsuit which aims to invalidate a public action or individual choice taken by a religious citizen or institution demonstrate a "compelling interest" in favor of doing so, or else be rejected as an unconstitutional violation of that person or organization's First Amendment rights. This is contrast to the line of thought promulgated by Employment Division v. Smith (or, for that matter, going way, way back, Reynolds v. United States) which takes a much less accommodating view of religious difference. It's possible that those who were criticizing Damon (and me for agreeing with him) prefer the Reynolds route when it comes to thinking about rights. More likely, I suspect, they are simply reluctant to take seriously any demand for exceptions on behalf of conservative churches and believers, since, in their view, those people and institutions have long exercised majority power in this country, and don't have anything to worry about any time soon, so why toss them a bone?
In this matter, they surely have a point. I'm fairly convinced that most of the claims on behalf of "religious liberty" that have been made by traditionalists and conservatives in regards to same-sex marriage over the past fifteen years are mostly based on paranoid nonsense. Damon himself acknowledges this, in a backhanded way; when he talks about the "restriction" of religious liberty, he's obliged to talk about how various religious believers and organizations "predict" or "anticipate" or "envision" possible future restrictions on or interference with their beliefs. Yes, it's possible that religious universities might be sued for refusing to allow same-sex couples to move into their married-only couples' housing, it's conceivable that ministers might have their licenses taken away for declining to perform weddings for same-sex couples, etc.--but nothing like that is remotely on the horizon. At least, not in the United States, that is. One does have to search and do some cherry-picking, but still, it's not all that difficult to find examples of all of the above, and more, in societies that don't have as robust a religious culture and history as the United States--and while the isolated instance here and there shouldn't give people license to spout off the tiresomely too-frequent nonsense about Christianity being a "persecuted religion," it doesn't hurt to be overly cautious, I think.
But that, in some ways, gets us to the real heart of the question: why be overly cautious? Everything we know about homosexuality suggests that it will never characterize more than just a very small percentage of the population, so gays and lesbians are always going to be a minority. And shouldn't minorities be the ones who enjoy the benefits of the protections provided by a liberal society, especially minorities who have often suffered great psychological harm over the decades (centuries!) at the hands of these traditionalist views? Won't being overly cautious simply stand in the way of allowing needed reforms in how homosexuals are treated in our society to proceed as they presumably should?
If we stick with thinking about rights solely in terms of power and influence here--that is, who holds a majority position in our democratic political culture, and who doesn't--than this might seem to be an easy question. But it isn't, not really. Jonathan Rauch wrote a very thoughtful essay (Damon cites it in his piece) which takes seriously the idea that, should the acceptance of same-sex relationships becomes normative and reflected in law, than the small minority of gays and lesbians in America might find themselves, with their allies, in a majority position, and hence the position of power will reverse; traditionalist opponents of same-sex marriage will be the one's claiming the need for minority protection:
A lot of gay people have trouble taking this narrative seriously, partly because it sounds so paranoid and nutty—as when Tony Perkins, the president of the Family Research Council, recently said, “If this case [overruling California’s ban on gay marriage] stands, we’ll have gone, in one generation, from 1962, when the Bible was banned in public schools, to religious beliefs being banned in America.” It would be a false comfort, though, to suppose that the gays-as-oppressors narrative can’t and won’t take root among moderates and thoughtful, mainstream conservatives—people like Michael Gerson and Peter Wehner, former Bush administration officials, who write, “If [gay] marriage is deemed to be a civil right—and if opponents are therefore deemed to be the equivalent of modern-day segregationists—churches may eventually be compelled to act in a way that complies with the spirit and letter of ‘anti-discrimination’ law rather than with orthodox Christian teaching.” Stated that way, the claim happens to be true....In a messy world where rights often collide, we can’t avoid arguing about where legitimate dissent ends and intolerable discrimination begins. What we can do is avoid a trap the other side has set for us. Incidents of rage against “haters,” verbal abuse of opponents, boycotts of small-business owners, absolutist enforcement of antidiscrimination laws: Those and other “zero-tolerance” tactics play into the “homosexual bullies” narrative, which is why our adversaries publicize them so energetically. The other side, in short, is counting on us to hand them the victimhood weapon. Our task is to deny it to them.
This is essentially where Damon stands; he wants to keep the various institutions of our civil society functioning on a truly neutral basis, which means providing a means for those who profoundly disagree with the way those institutions are changing to nonetheless still feel welcome (or, at least, tolerated) in their use of them. For example, he suggests, the urge to "educate traditionalists away from their deeply held religious convictions" would only result in "a mass exodus of religious traditionalists from the public schools," and hence is something to avoid. Similarly, while he allows that religious institutions that provide public services must be obliged to conform to the standards which civil society accepts as normative and which may be enforced by law, those laws themselves must be written in such a ways as to "unambiguously protect the right of traditionalists to preach their beliefs about the evils of homosexuality and to pass those beliefs on to their children." All his fits very well into the same strongly pluralistic Sherbert model of liberalism which Rauch clearly accepts as well.
The reasons why I, despite liking the conclusions which Damon and Rauch come to, feel a need to clarify my own support for their position, though, is that I don't really accept that model of liberalism. Oh, it's definitely one way--and a good way at that--to function in a pluralistic society, but I'm not sure it's the best way to achieve the goods it results in, especially considering its costs. One of those costs is that if you really believe, in the end, that rights are fundamentally about "defending the rights of dissenters"--which is how Damon ends his piece--then you're locking yourself into a constant majority-minority contest, one that will actually make the sort of consensus by which any practice or belief can become normative in the first place that much more difficult. It's a kind of individualism, in other words, and while particular individuals--and certainly not especially religious ones!--definitely don't at have the legal ability to operate utterly without regard to their surrounding communities, it is the case that this sort of thinking robs communities of some of the basic tools that, within the context of basic liberal freedoms, ought to be available to them. In other words, yes, I believe that churches need strong First Amendment protections, but if you do it solely around a Millian fetishizing of "minority" or "dissident" expressions, the result will be Supreme Court decisions like Snyder v. Phelps (which I deeply disagreed with) wherein legitimate questions about the harm or even the substantive rationality of various outrageous claims are free from any sort of private or political judgment. I recognize that in saying this I could be suggesting that the doors need to stay open for tort actions or local regulations that would target exactly the sort of conservative believers and organizations which I just agreed with Damon need robust First Amendment protections. But I do think they deserve protections--and I think that not because I think civil society is necessarily well served by making certain that every dissident expression is fully protected in every possible case, but because I think these particular expressions (the opposition to same-sex marriage primarily, but also the whole traditionalist religious morality which condemns sexual activity outside of wedlock) are rational and deserves respect, even if I (like lots of people!) no longer agree with elements of that argument any longer. As that position is not, to quote myself, "obviously silly or just a cover for raw distaste and prejudice," even in parts of it are wrong, it ought to be guaranteed recognition--the way that, I think, the religious expression of the Westboro Baptist Church, that God is killing American soldiers in order to punish America for tolerating homosexuality, doesn't deserve respect.
Do I really expect our liberal judicial order to start extending different levels of legal protection to distinct religious expressions on the basis of how rational we democratically decide said expressions to be? Not really, and certainly not formally (though one might argue that we informally do that anyway, through the subtle perseverance of a vaguely Protestant Christian civil religion in American life). And, lacking the ability to persuasively articulate that kind of communitarian judgment regarding religious expressions in America, I'll go along with Millian pluralism and Damon's valuable warning against allowing this slow-but-all-but-certain sea-change in the American understanding of marriage and family life to push traditionalist believers so quickly and self-justifyingly into the crouch of victimhood. I've changed my mind about same-sex marriage; I'm far from the first to do so, but I'm also quite certain I'm far from the last. As this process continues, as reluctant as I am to admit it, the courts can't avoid getting involved and laying down some precedents, especially given the specific case history here (David Watkins and several commenters on the post he put up responding to me have convinced me of that much). Those will precedents will invariably--and perhaps rightly--narrow the allowable window for dissent. But I hope that, at the least, whether it's done in the name of allowing for continued debate over the rationality of different religious claims, or just for the sake of making sure the new traditionalist minority enjoys their full First Amendment rights, the Supreme Court will allow us to keep that window open as much as we legally can.
