Balkinization  

Wednesday, January 16, 2013

Freedom to worship, not freedom to shun: accommodating pluralism in American public life

Guest Blogger

Jennifer C. Pizer



It was disappointing, if not truly surprising, that the World Day of Peace message with which Pope Benedict XVI welcomed this new year warns, among other things, that those who would treat loving same-sex couples and their families equally under civil law are “harm[ing] and help[ing] to destabilize marriage.”  That isn’t a new claim.  It still echoes in nearly every marriage equality case, even as the social, scientific, and legal records ever-more-thoroughly show it is baseless.  Then the Day of Peace message adds a more sharply cutting charge—that civil marriage equality “constitutes an offence against the truth of the human person, with serious harm to justice and peace.”  I scan the international headlines.  There are wars raging and constant, and horrifying assaults on justice.  But lesbian and gay couples in love and building families are nowhere the cause.

I realize that, at least in the United States, most take with more than a pinch of salt the Peace message’s admonition that controlling climate change requires forbidding abortion.  Perhaps the same is true for the claim that allowing same-sex couples to tie the knot prevents world peace.  And yet, when Pope Benedict calls to action not just to his flock of more than 1 billion but “all people, whatever their religious affiliation,” he speaks from the ultimate bully pulpit.  His message speeds around the globe, reinforcing the prejudice that afflicts lesbian, gay, bisexual and transgender (LGBT) people in all corners, with sometimes tragic consequences.  Here in the U.S., U.S. Department of Justice and Los Angeles County statistics show that antigay hate crimes are the second most common at between 20 and 25%, which is 6-7 times the size of the targeted population.  Beyond bias crime, research finds a range of negative health effects for LGB people of antigay discrimination and social stigma.  In contrast, initial studies indicate positive mental health effects for same-sex couples of legal marriage.

This change is coming, with nine states and the District of Columbia now respecting same-sex couples’ freedom to marry and well over 100,000 same-sex couples identifying as married.  Voters rejected antigay discrimination in all four of the state ballot contests concerning marriage this past November; in Maine, Maryland and Washington, voters opened marriage by approving past legislative action doing so.  As we begin 2013, plans for marriage equality bills are underway in Delaware, Hawaii, Illinois, Minnesota and Rhode Island. 
 And now a paradox appears.  Unlike the “thumbs up” or “thumbs down” decisions of most courts assessing constitutional claims, the increased activity in state legislatures brings negotiation about terms.  As acknowledgement grows that society lacks good reasons for denying lesbian and gay couples an opportunity that is joyful for many, some who oppose this change on religious grounds are pushing to change rules governing the marketplace.  They don’t propose to withdraw from the market themselves.  But, if same-sex couples are to marry, they want to impose a buffer.
We have seen religiously motivated discrimination based on race, sex, marital status and other grounds.  For the most part, courts have enforced the civil rights laws when they have applied, rejecting religious liberty claims.  People engaged in commercial activity have had to co-exist across these differences and discrimination has decreased.  This system does not appear to be broken.  Does it really need fixing? 
Despite this history of civil rights enforcement, respect for our constitutional value of protecting religious belief and worship often prompts at least initial receptivity to proposals for antigay exemptions as a price that may be exacted from same-sex couples for their freedom to marry.  That has struck me as odd.  We saw nothing analogous for couples whose faith is different from that of a business owner, or for those who remarry after divorce or across religious lines, let alone for interracial couples.  Imagine if a Christian baker was to refuse Jewish couples, or a Jewish dressmaker was to refuse a Muslim bride.  Or if the Knights of Columbus rented their event facility generally to the public for birthday parties, bar mitzvahs and quinceañeras, and anniversary parties and weddings, but, on religious grounds, not for celebration of Hindu holidays.  Or, not to groups of women executives.   A state legislature could permit all of these refusals via exemptions to the state’s public accommodations law.  But at what cost to society?

Proposals in multiple states have sought (1) to exempt marriage “celebrations,” meaning wedding receptions not just solemnization ceremonies; (2) to allow non-recognition of same-sex couples’ marriages, such as in religiously affiliated hospitals and nursing homes where visitation or decision-making depends on one’s legal status; and (3) to exempt from nondiscrimination rules those receiving public funds to provide social services, such as for addiction recovery, hunger relief, child placement, seniors, and those who are homeless.  In considering these proposals to refuse same-sex spouses in a host of secular contexts, I am focusing on policy choices within constitutional parameters that legislators are free to make, but perhaps should not make.
Some of these questions are being debated now in Illinois.  Chicago’s Cardinal Francis George has written to all members of the General Assembly opposing the marriage bill and asking, “What do Nature and Nature’s God say?  His answer is that “Marriage comes to us from nature.    Civil laws that establish ‘same-sex marriage’ create a legal fiction.  The State has no power to create something that nature itself tells us is impossible.  … When the ways of nature and nature’s God conflict with civil law, society is in danger.”
Of course the Church is fully free to preach these views and to hold their clergy to them.  But just as sectarian views of Natural Law cannot dictate gender-differentiated employment rules for Illinois, these tenets also cannot substantiate “danger” sufficient to exclude anyone from family law status, or social services delivery, or commercial transactions.  Religious groups can choose how much to participate in the public sphere and how much to act within the special spaces they create for their flocks.  But then a basic principle applies:  “‘when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.’”  (Catholic Charities of Sacramento, 32 Cal. 4th 527, 565 (2004), quoting United States v. Lee, 455 U.S. 252, 261 (1982).)
 
There is poignancy as well as principle involved when those who opt to make their living selling wedding services or goods demand special exemptions from anti-bias laws to inject sectarian hostility into a field ostensibly about celebrating love and commitment.  In any event, while I agree to disagree with Pope Benedict about what constitutes “appropriate attitudes and lifestyles,” I sincerely endorse some of his animating themes, including this one:   “there is a need … to teach people to love one another, to cultivate peace and to live with good will rather than mere tolerance.”  As we gather to assess the legacies of two constitutional milestones at the holiday honoring the legacy of Rev. Dr. Martin Luther King, Jr., let us be mindful of the role of equality guarantees in facilitating interactions that teach people about each other.  And let’s acknowledge, too, what bargaining can cost when basic rights are subject to negotiation.  The better guarantee of peace, and security for each group’s freedom of belief, is when targeted exemptions are declined and there is no shunning in the public square, or mall, or with the public’s dime. 

Jennifer C. Pizer is Senior Counsel and Director, Law and Policy Project at Lambda Legal.  You can reach her by e-mail at jpizer at lambdalegal.org



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