By Tom Cushing
The Orthodoxy* Strikes BackUploaded: Jul 11, 2015
Rear-guard actions always seem to accompany successful civil rights struggles, as hold-outs resist compliance. Few of my generation can forget the image of segregationist Governor George Wallace grand-standing in the doorway of the registration hall at the University of Alabama, trying to block admission of that institution's first two black students. Echoes of that 'southern heritage' hand-me-down were heard in the South Carolina legislature this past week.
This past month also witnessed the culmination of the same-sex marriage (SSM) movement. And predictably, objections are flying ? mostly from those who stake a basis in religion for their opposition. So far, the issues seem to take three forms.
We'll try to examine those shortly -- but first, an aside about the term "predictably." Conflicts implicating religion are always among the most intractable. They are based on values and faith, so they go to the very core of the adherents, and are not susceptible to contrary evidence or argumentation: they just 'are.' There is very little 'give'; it's all 'take' as each disputant calls upon non-negotiable, otherworldly principles to undergird their respective positions.
Frankly, there also seems to be an inclination to bear witness via some form of sacrifice or even martyrdom, as a demonstration of one's conviction. How else to explain suicide bombers, for an extreme instance? So too, the persecution sentiment clearly and recently expressed by some Christians, in a nation that identifies as 76% Christian, is not only unsurprising ? it's inevitable.
The other thing it's useful to remember is that these conflicts do not regulate beliefs, but only practices as they affect other people who may not share those beliefs.
Now, the first, most immediate objections to SSM have come from public officials in the chain of implementation down from the Supreme Court's order. These practices took the forms of delaying the inevitable, as some lower court officers tried to do, and attempts at a kind of conscientious objection -- refusing to issue licenses or perform courthouse ceremonies based on claimed religious grounds.
The problem with these actions is that each public official takes an oath to defend the Constitution of these United States, as defined by the Supremes, and including the Obergefell decision. The luxury of picking-and-choosing according to any perceived basis must be left outside the door of the courthouse or county clerk's office. The only recourse I see for these folks is resignation (from office). I don't know of any way to rationalize this situation: even allowing the objecting clerk to handle only the hets as long as somebody else is willing to deal with gay aspirants limits and trammels the new and hard-won rights. Upholding Equal Protection and Due Process demand no less than equal treatment from all government representatives.
The second set of issues involves private parties who hold themselves out to do business that may touch on same-sex unions ? most notably on the wedding ceremonies, themselves. As discussed in an earlier epistle, these merchants' right to decline service under those circumstances currently depends on where they are located. In all states, commercial discrimination based on a limited menu of characteristics like race, color, gender, etc. has been illegal since 1964. Thus, refusing to serve a 'traditional' African-American couple at your lunch counter, or to bake them a wedding cake, is clearly verboten. In states or localities that extend the same protection to LGBT status, there is similarly no right to refuse service to couples who are both happy and gay. Our fair California is one such state.
In other locations that lack such inclusion, the merchants are simply unaffected by the SSM decision. They were free to so deny a gay wedding cake ? or, say, celebratory pizzas ? in May of this year. And, they are likewise free to do so now, for a whole host of reasons ("no shirt, no shoes?"), including religious objection.
For completeness, though, those bakers might consider inquiring of all their prospective customers whether either has ever misbehaved in other objectionable ways ? like coveting, blaspheming, money-changing, etc. ? it's potentially a very long list. Otherwise, the denial of the same-sex couple is kind of a superficial expression ? an objection limited to a small selection of easily observable perceived sins. Of course, they could also decide, as I believe they will eventually, to separate the secular from the sacred. This is just business, after all, in the nature of 'rendering unto Caesar'.
The third form of objection is most interesting, and mostly institutional. It is a concern that a religiously affiliated organization might lose eligibility for some benefit or favored tax status from the government if it acts in accordance with its conscience. The classic example here is Bob Jones University, which found a scriptural basis, somewhere, for its opposition to interracial social relations and marriage. BJU lost its tax-exempt status as a result.
One could also foresee that the feds or staties might disqualify such an institution ? school, hospital, or church, per se -- from doing business with the government, or receiving grants associated with its work unrelated to the issue of the day. The government buys and bestows a lot of stuff ? thus, this is no small concern.
Accordingly, even before Obergefell was announced, Utah Senator Mike Lee and 33 GOP co-sponsors introduced what he calls the First Amendment Defense Act (S. 1598). It would forbid the government from 'retaliating' against any individual, association or business that "? believes or acts in accordance with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage."
It's quite early to analyze this bill, so this is a "stay tuned" matter for further conversation. I'll hazard a few preliminary observations:
o the government is generally quite reluctant to intervene in the religious realm ? the First Amendment freedoms of religion are already pretty well-defended by precedent.
o this appears to be a specific application of the Religious Freedom Restoration Act of 1994, this time directed at SSM. It's not clear to me that its substance isn't already covered by that law. To the extent that it attempts to go further than requiring the government to show a 'compelling state interest' in a religion case it's probably void. You can't do by the statute things that require an Amendment to accomplish.
o note the additional language about "sexual relations are properly reserved to such marriage." That phrase dramatically widens the stated scope of the bill ? to anyone, having any kind of sex, outside the marital union. That phrase would appear to sanction very much broader 'morality codes' of the type controversially espoused by SF Archbishop Cordileone for his diocesan school staff.
I'm guessing that clause won't last. Indeed, it's curious that the first listed co-sponsor is LA Senator David Vitter, whose extra-marital extra-curriculars have been pretty well-documented. Do these guys really want to be casting those stones?
o The quoted "believes or" language looks problematic on "vagueness" grounds, as does the "or moral conviction" text. How do you apply those concepts? We'll see.
o finally, I wonder about the prospects of this legislation, that would require some Democrat support to override what seems like a probable veto.
Anyway, this is an interesting issue that bears watching. As above: stay tuned!
* Humble scribe had some difficulty drumming up a catchy title this time. This blog did grow out of a conversation with a good friend who self-identifies as an 'orthodox Christian,' which was a new one on me. So there you have it.