In the wake of the Supreme Court’s ruling on marriage, the question is: who deserves to be coerced by the government to embrace the Court’s new definition of marriage, or penalized for declining to do so? The answer: No one. The government is not justified in coercing or penalizing anyone or any institution that believes and acts on the belief that marriage is a union of husband and wife.
Some people, however, think policy should only protect religious non-profits. They evidently believe that religious people in the marketplace don’t deserve protections, and that non-religious people and secular institutions who believe the truth about marriage as the union of husband and wife somehow aren’t deserving of protections.
We reject this.
In a short essay posted yesterday at the Daily Signal, we explained that no one should be legally penalized for believing that marriage is a male-female relationship or for acting on that belief. And we suggested that public policy should reflect this principle, and the First Amendment Defense Act is admirable—and necessary—as a means of effectuating it.
Rusty Reno takes issue with our piece for three reasons. Here are our responses.
First, Rusty says “The Founders singled out religion for special protection in the First Amendment. They did so because they recognized the unique fervor of religious convictions and the remarkable tenacity of religious institutions.”
True. But that’s not a reason for excluding from protections secular groups and individuals who are not religiously affiliated or observant but who dissent from the redefinition of marriage. The First Amendment, after all, also protects freedoms of speech, press, and assembly—for the religious and non-religious alike. The Founders rightly understood that all of these freedoms are united, which is why they were all protected in the First Amendment. Protecting an ecosystem of freedom is important—not carving up these freedoms. The First Amendment Defense Act can and should protect the free exercise of religion without ignoring the freedom of speech, press and assembly for the non-observant as well as the devout. No organization should lose its non-profit tax status or its license or accreditation because it believes in marriage (the real thing).
Second, Rusty points to the Second Vatican Council’s Declaration Dignitatis Humanae. He writes: “The Fathers at the Council singled out religious freedom because they saw (accurately) that our religious convictions and practices bring to fruition, however imperfectly, our deepest purpose as human beings—to know and love God. Thus the state must be especially solicitous of the religious dimension of our lives.”
True—as far as it goes. But here is what is also true: That religious freedom is rightly singled out by the bishops at Vatican II is not a reason for failing to protect the rights of conscience for the non-religious. Indeed, the Catechism of the Catholic Church, citing Dignitatis Humanae, makes this clear: “Man has the right to act in conscience and in freedom so as personally to make moral decisions. ‘He must not be forced to act contrary to his conscience. Nor must he be prevented from acting according to his conscience, especially in religious matters.’” Just so, especially in religious matters, but not exclusively in religious matters.
Third, Rusty points to “a practical, real world reason for focusing on religious non-profits. It's extremely likely that the only significant, ongoing dissent to sexual liberationist orthodoxy will come from religious people and the institutions they run for the sake of living out their faith.”
This could be true, though we hope that resistance to the new anti-marital ideology will be broader. Even if it turns out not to be, though, non-religiously affiliated people and non-sectarian institutions deserve protections—as a matter of principle.
Rusty rightly notes that “the goal of the gay rights project is affirmation.” And he adds that it will seek “forceful applications of state power to coerce us: revocation of accreditation to educational institutions, attacks on tax-exempt status, and other methods of imposing sexual orthodoxy.”
But his conclusion, again, does not follow. Protecting a right for the religious to hold onto an allegedly idiosyncratic backwards religious belief about marriage will over time be watered down. The important point to win now is that it is reasonable for everyone—religious or not—to think marriage is the union of a man and a woman, and that anyone who thinks that and acts that way shouldn’t face government penalties and discrimination.
All Americans—regardless of their views about marriage—should see to it that we protect pluralism and tolerance on this issue. And thus all Americans—religious and non-religious alike—should have their freedom of belief and action protected.
As we noted, trade-offs may have to be made to get FADA passed. Politicians will have to weigh those during mark-ups, floor debates, the amendment process; for now, let’s be as clear as possible about the ideals that should guide it.