Russ Douthat is a relatively rational conservative who accepts that same-sex marriage is pretty much inevitable. But in a post at the New York Times he argues that there still need to be protections for religious freedom — and pretends that how much protection there is will depend on the magnanimity of equality advocates.
Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today. And I can imagine a scenario in which a more drawn-out and federalist march to “marriage equality in 50 states,” with a large number of (mostly southern) states hewing to the older definition for much longer than the five years that gay marriage advocates currently anticipate, ends up encouraging a more scorched-earth approach to this battle, with less tolerance for the shrinking population of holdouts, and a more punitive, “they’re getting what they deserve” attitude toward traditionalist religious bodies in particular. If religious conservatives are, in effect, negotiating the terms of their surrender, it’s at least possible that those negotiations would go better if they were conducted right now, in the wake of a Roe v. Wade-style Supreme Court ruling, rather than in a future where the bloc of Americans opposed to gay marriage has shrunk from the current 44 percent to 30 percent or 25 percent, and the incentives for liberals to be magnanimous in victory have shrunk apace as well.
But this simply is not true. The degree of religious freedom on this is controlled by a wide range of laws and judicial precedents that are very unlikely to change. The obvious analog is interracial marriage. The law says that the government cannot ban interracial marriage, but have we ever forced a church to perform such a marriage? No. And we never will. The free exercise clause of the First Amendment, more than a century of court cases defining the ministerial exception, the Religious Freedom Restoration Act and dozens of similar state laws make that an undeniable reality.
But the opponents of equality argue that such exceptions should be given to any religious person who object to any accommodation with same-sex weddings, even in their businesses (but such exceptions, most argue, should only apply to those with “sincerely held religious beliefs” — another example of Christian privilege in action). And this, too, is already determined by existing law and, again, the case of interracial marriage makes this clear. A church does not have to perform an interracial wedding, but if you have a business — defined in the law as a “public accommodation” that is open to the public — then you cannot refuse service on the basis of race (or religion, or gender, or age, etc).
The degree to which such laws violate religious freedom is precisely the same in sexual orientation as it is in race. Just as there are some business owners whose “sincerely held religious belief” compels them to want to discriminate against gay people, there are also some business owners who “sincerely held religious belief” compels them to want to discriminate against blacks, women, Muslims, atheists and so forth. Except that sexual orientation is not a forbidden basis for discrimination at the federal level, so state law will determine who gets to discriminate and who doesn’t. So the reality is that more Christians will be allowed to discriminate against gay people while none can discriminate against black people or women (at least legally; it does happen, of course).
For those who claim this is a violation of religious freedom, the real question must be obvious: If you demand the freedom to discriminate against gay people in your businesses, shouldn’t you also be free to discriminate against black people? And shouldn’t others be able to discriminate against you because they don’t approve of Christians? There are some folks on the fringe, mostly libertarians, who would take that position, but Douthat certainly wouldn’t. I’m sure he fully supports the Civil Rights Act anti-discrimination protections. So why does he think that we should carve out an exception only for religiously-motivated anti-gay bigotry and not for any other form of religiously-motivated bigotry?
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