Balkinization: More Questions for Ross Douthat

More Questions for Ross Douthat

Nelson Tebbe

In an elegant piece published yesterday, Ross Douthat asks himself some questions about the current conflict between religious freedom and equality for LGBT citizens. He wryly identifies himself as a “semi-reasonable Christian” and then gives clear answers concerning issues like whether wedding vendors should have to serve everyone and whether there are differences between declining to serve same-sex weddings and interracial weddings. Below the fold, I pose several additional questions for Douthat. Like him, I’m genuinely interested in the answers.

Douthat’s basic position seems to be that legal accommodations for religious organizations and businesses from civil rights laws respond to theological convictions that are sincere and longstanding. Moreover, such accommodations will be limited in impact. In particular, they 1) should be available only for services related to weddings, not discrimination on the basis of identity, and 2) ought to be allowed only for objections to same-sex marriage, not for objections to interracial marriage.

But Douthat doesn’t ask himself some other hard questions about these positions. I would be interested to know his answers to these as well. My concern here is legal, while Douthat’s broader focus includes policy and morality, but there is enough overlap that I think these questions are fair.

1. It’s one thing to say that racial discrimination has a special place in American law and history, and that objections to same-sex weddings are distinguishable. But civil rights law provides equally strong protection against discrimination on the basis of religion and, in many jurisdictions, marital status. A commercial wedding vendor who declined for religious reasons to serve an interfaith wedding or a remarriage would not receive an exemption—a result that I take to be relatively uncontroversial. How is a decision not to serve a same-sex wedding different from a decision not to serve an interfaith wedding or a remarriage?

2. Douthat says that accommodations would be limited to weddings, but what is the principled distinction between a wedding and a marriage? Weddings are momentary, while marriages are designed to last years. Presumably they implicate similar theological objections. Under his approach, should a religious employer be allowed to deny spousal benefits to an employee’s same-sex husband or wife?

3. That is probably the most pressing next case, but there are many more situations where religious providers could decline to promote or support a same-sex marriage: joint adoption for same-sex spouses, retreat centers for married couples, married student housing, visitation rights at hospitals, renting event spaces for anniversary parties, leasing apartments to married couples, etc. And these examples are not imaginary—exemptions similar to some of these have already been granted by state marriage equality statutes. How would he address these scenarios?

4. Even as to weddings themselves, would all religious objectors be accommodated? Should public officials be able to decline to process same-sex marriage licenses or to solemnize same-sex wedding celebrations, assuming they have a theological objection to doing so? No state has passed such a measure yet—Utah’s recent law is somewhat unclear on the point—but some states are considering outright exemptions for public officials. Would that be proper under public service laws or the Equal Protection Clause?

Posted 5:53 PM by Nelson Tebbe [link]