Same-Sex Marriage, Religious Liberty, and the Democratic Moment


Now that the Supreme Court has ratified Same-Sex Marriage (SSM) as a “fundamental right” in Obergefell v Hodges, it looks as if we will finally get to how religious liberties will fare. For the past 10-15 years, scholars and pundits have variously warned about or celebrated the idea that broad changes in how the law thinks about sexual orientation would impinge on individuals’ and institutions’ exercise of their religious beliefs. (See this edited volume as one example) Here (as much for my own benefit as anyone else’s) I thought would sketch out what I take to be the most significant possible challenges religious communities and individuals will face in the coming years, at least as things stand right now, what would we (traditionalist religious believers) might do in response. To give away the conclusion, I think these challenges can genuinely be met, but only if we take seriously our own obligations as citizens in a democratic republic to vindicate and protect our own liberties not merely through litigation and court decisions but more importantly through popular deliberation and legislative action. In other words, if we are to find ways to give religious liberty its due, it will be up to us as citizens and the men and women who represent us in our legislative bodies to make it happen. The advent of SSM offers us a democratic moment—will we take it?

The first thing to note is that SSM in and of itself will not likely present any direct challenges to religious liberty. Instead, because it embodies and represents a deep and pervasive change in how we think about sexuality, families, and the like, it really just accelerates the growing sense within our society that broadly popular anti-discrimination norms should be extended to include sexual orientation (and, I think, gender identity). The challenge of SSM is really the challenge of non-discrimination.

It’s worth pausing for a moment, then, to think about why we value anti-discrimination norms—and why we sometimes don’t. It’s not uncommon to hear or read people suggest that we shouldn’t abide any sort of discrimination, but a moment’s reflection shows that to be obviously untrue. No one (or almost no one, I’d guess) really minds that Harvard prefers smart high school students to dumb ones and thus discriminates. Similarly, it would be an odd thing if you couldn’t “discriminate” in your choice of a spouse or roommate. Or if the NBA didn’t prefer people who could jump over people (like me) who can’t. But we would find it objectionable (and legally actionable) if Harvard refused to admit Latinos or the NBA discriminated against Lutherans. We’d even find it morally bothersome if someone was committed to only marrying or rooming with someone of a particular race, though it’s unlikely we’d make it a legal issue (though there were some interesting legal cases with regard to the latter that show its complications). What accounts for the difference in our moral and political judgments?

The difference lies in our judgment that, first, there are some aspects of our selves, the ways in which we identify and are identified, that should not shape how we treat others or are treated—they are “morally irrelevant,” we might say. Imagine someone made employment decisions in a bank based on the length of the applicants’ nose – just silly, right? More importantly to this discussion, we also have made the judgment that access to certain goods—employment, education, health care, legal judgments, etc.—are so central to living even a reasonably good life (in our society, at least) that their availability should not be conditioned by these “morally irrelevant” characteristics. If you fail to study hard or just don’t have the native intelligence to do really well in school, then Harvard is not wronging you by not admitting you. If Harvard denies your application because of your skin color or ethnicity or place of birth, then it has indeed wronged you. Sometimes, we might acknowledge that you’ve been wronged—it seems right to say that you’ve been morally wronged if someone refuses to be your friend or be romantically interested on account of those sorts of characteristics—but not make it a matter of political judgment because to do so would extend the state’s reach beyond its proper scope. (Imagine a Federal Friendship Law). When Congress enacted the 1964 Civil Rights Act as a way of breaking racial segregation, it represented a dramatic expansion of federal political authority precisely on the theory that black citizens’ lives were being systematically devalued and made difficult solely on account of their race—and that the only way to change that was to prohibit (and penalize) racial discrimination across a wide range of “public accommodations.” Over time, Congress added other categories—sex, age, marital status, etc.—with the view that these, too, should not impinge on our access to those fundamental goods necessary to living well in modern America.

The true challenge that SSM represents for religious liberties, then, is that it offers a shot in the arm to efforts to extend those anti-discrimination norms to include sexual orientation and gender identity. (The latter isn’t necessarily required by SSM, but it seems to follow along nonetheless). And so the question becomes whether in extending those norms, we should continue or even expand the range of exceptions we offer to religious believers and institutions or, conversely, whether we should narrow or eliminate them. Currently, most religious institutions (at least the non-profit ones) get more or less a pass on most anti-discrimination statutes, and it’s easy to see why. It would be strange thing indeed if a church or mosque could not require a minister to be of its own faith. So the Catholic Church can freely discriminate not just against non-Catholics in its selection of priests, but also against women.

The partial exception to this broad set of exemptions is race, and it is here, in particular the Supreme Court decision in Bob Jones v United States, where we can see highlighted where religious liberty and expanded non-discrimination norms could come into conflict. Bob Jones University was (and is) a fundamentalist Christian college that used to (though no longer does) discriminate on the basis of race. The IRS decided that this meant it could no longer claim a tax exemption and the Supreme Court agreed in 1974 that the public interest in eradicating racial discrimination meant that the university’s religious liberty had to give way. The idea is not that you couldn’t have a racially discriminatory church or college or whatever, but, rather, that the state could decline to “subsidize” such an institution with tax-exempt status, even if such a decision meant that the state was picking some religious entities out for disfavor (thus rubbing up against the well-established principle that the liberal state cannot support some religious communities over against others). (I tend to think the notion that tax-exempt status is a “subsidy” represents a poor understanding of the proper relationship between the state and civil society institutions, but my views, for some reason, have not won Supreme Court approval yet). The general principle is that while religious liberty is important, in this particular case, it’s more important that the state work to eradicate racial discrimination.

For some, since moral opposition to homosexual practice is on a par with racial discrimination, religious groups that don’t get on board with the new dispensation should likewise lose their tax-exempt status. We should not, I think, discount this possibility, especially with respect to states or local municipalities where religious liberty protections might be weaker than they are on the federal level. But before giving into full-fledged panic, it’s worth noting a few things here. First, so far as I know, no court has, in fact, extended the logic of the Bob Jones case in such a way as to take it beyond race. No religious institution has lost its tax-exempt status because, for example, it only allows one sex to participate or hold some sort of office. Second, since Bob Jones is a university, it doesn’t quite fit into the same category as churches proper (which should probably be a relief to churches, but not mean very much to schools, non-profits, etc.) And, finally, the Bob Jones case was at the tail end of a long series of legal and political efforts to combat a much more pervasive set of discriminatory institutions, something that is obviously much less true with regard to sexual orientation. So though it is clearly the case that if you think that moral opposition to homosexual practice is on a par with racial discrimination, you probably should be in favor of extending the Bob Jones case to all sorts of other situations, it seems to me that the political and material conditions make such a move not immediately in the offing.

Much more likely, at least in the short- to medium-term, are any number of smaller, more localized efforts to ostracize religious communities who hold to orthodox sexual views. We will likely see, for instance, efforts to exclude those communities’ access to public venues and certainly public monies, the latter through grant and contract rules requiring adherence to non-discrimination norms. Plenty of communities went out of their way to disadvantage the Boy Scouts over their (now ended) ban on gay scoutmasters and President Obama looks to issue an executive order prohibiting those who hold to traditional religious views from competing for government contracts. We may also see efforts, already in motion to some degree, to use licensing and other forms of credentialing procedures to weed out those who don’t affirm the new dispensation. Gordon College had its accreditation threatened last year over the issue, and it seems plausible (likely, even) that other credentialing bodies will try and flex their muscle in the near future as well.

Finally, and much more nebulously, it seems likely that we will see an invigorated move to make traditional views outside the bounds of “polite society” (as if our society is anything like “polite”). All one needs to do is to think about the overheated response to Indiana’s proposed state-level RFRA (especially in a context where state anti-discrimination laws did not over sexual orientation) to recognize that there are powerful cultural movements dedicated to making the traditional view of sexuality as socially noxious as explicit displays of racism.

So what to do?

Well, we could just try and withdraw from the surrounding culture a la the Amish, but that seems unlikely to succeed in any sense, even if it were an attractive option. We live within a regulatory state that claims a wide expanse of interests, ones that do not stop at the threshold to our homes, churches, or anywhere else. Though the Supreme Court found that churches do have a broad “ministerial” exemption with regard to anti-discrimination norms Hosanna-Tabor v EEOC, it is telling that the Obama administration argued (unreasonably, in my view) that no such exemption was required by the First Amendment, suggesting instead that churches and other religious institutions should be required to defend discriminatory practices in court as intrinsic to their religious mission. Few share that expansive view, but it seems reasonable to think that, unless trends change, regulatory efforts that fall just short of that will be on the table in the relatively near future. (It’s worth noting in this context that though the court was unanimous in affirming the “ministerial exemption,” there was significant disagreement about how far the exemption should extend within religious organizations. The state will not be able to tell churches how they choose their ministers, but with regard to their teachers, support staff, and the rest, we can’t be sure). Religious liberties thrive not just in a culture where the law is right, but where popular sentiment believes in its principles as well. When the state can (and does) reach most everywhere, it will do no good to simply try to build high walls around our institutions and hope we won’t be bothered.

A better answer starts in noting that in all the various challenges I sketched out above where the initiative lay–in the political, that is the legislative and executive, branches of government. Though the Supreme Court affirmed SSM as a “fundamental liberty,” the Court is, I think, highly unlikely to demand on its own that churches and other religious organizations change their views accordingly. Rather, if we get threatened with a loss of tax exemptions or what-not, it will be on account of cities, states, and the like deciding to take action. The Court didn’t on its down decide that Bob Jones shouldn’t have a tax exemption; it just ratified the IRS’s decision as constitutional. When the California State system decided to suspend InterVarsity Christian Fellowship it did so because it made a judgment about the relative importance of non-discrimination and religious liberty – and it reversed its decision when pressed on the merits. If and when cities or states think about yanking churches’ and schools’ tax exemptions, or when credentialing bodies suggest you can’t become a licensed counselor without pledging to the new faith, it will be people in political office who make those decisions—real, live, people who can be reasoned with or even replaced through electoral efforts.

And this is why I think the conflict between religious liberty and SSM offers us what we might term “a democratic moment.” The most significant debates are not to be held, at least at first, in the courts, but in legislatures and regulatory and licensing bodies. We are conditioned to think that our most significant debates happen in front of judges—and courts do matter, of course—but that’s just not true in this case. Courts will not decide these outcomes. They may ratify (or overturn) them, but the first move belongs to us as citizens engaged in moral and political deliberation. So when a city or state begins to deliberate about whether traditionalist religious colleges and non-profits should continue to receive tax-exempt status, our first impulse should not be to ask about how this fits with this or that legal doctrine or whether the courts will affirm or deny. It should be to engage in serious, thoughtful, and passionate deliberation with our fellow citizens, making the case that we have good reasons for organizing as we do and that they have good reasons for respecting that. In other words, we should act as citizens, not subjects, and validate our liberties in politics, not just beg courts to do it for us.

Christians (and others who think religious liberty shouldn’t always lose) should recognize that while we might lose (and will lose in some places), those losses are not inevitable, nor are they simply issues of legal and constitutional doctrine. These are moral and political matters that citizens in a democratic republic have a responsibility, the privilege really, of deliberating about and deciding. It would be a shame if we didn’t recognize that.


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