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February 25, 2004

Discrimination in the Name of Openness

It is reasonable to anticipate that, should gay civil marriage come to be, the next push will be to force religious institutions either to perform gay marriages or to disconnect from the ability to grant civil marital status as part of religious ceremonies. Nonetheless, I didn't think it worth worrying about anything specific — such as the loss of tax exemption — because I largely agreed with Eugene Volokh:

He said churches could raise a "significant constitutional defense" to keeping their tax-exempt status. He noted, for instance, the Catholic Church has faced criticism for years because it doesn't ordain women as priests.

"Churches, quite clearly, have the right to marry or not marry whoever they please," Volokh said. "Maybe somebody could sue them for discrimination in marriage, but the churches will certainly win."

Of course, even on this basis alone, one could suggest that they'll maintain the right to marry whomever they want, while losing the public recognition of those ceremonies. But the SCOTUS ruling regarding discrimination against students in Washington state just because they'll pursue religious studies does much to push Volokh's confidence toward religious folks' worries. Here he is on the Washington scholarship case:

The result, I think, genuinely is the discrimination against religion that people have complained about (sometimes wrongly, but here rightly) -- not just exclusion of either pro-religion or anti-religion messages from the government's own speech, but a regime where the government may discriminate against private religious institutions and programs, but may not discriminate in their favor. Now this is a wrong that is indeed worth amending the Constitution over.

Rick Garnette says that the court "has authorized discrimination by state actors against those who take their religious faith seriously." Prof. Bainbridge positions the ruling in opposition to the frequent calls for the courts to "protect minorities from the 'tyranny' of the majority," a sentiment that gay marriage advocates have voiced to justify pushing their cause through the judiciary.

Put it all together, adding in suppression of free religious speech in Canada and action against the Boy Scouts in the United States, and the circumstances seem to justify moving from vague suspicion into open concern. Volokh suggests that the discrimination against religion is "worth amending the Constitution over," but I wonder to what rallying cry he would tie such a movement. The U.S. Religious Scholarship Protection Amendment?

Too many people have been wooed by specious arguments about "separation of church and state" and convinced that it requires the very discrimination that Volokh decries for a general religion-protection amendment to gain traction. Similarly, too many fair-minded and reasonable people with faith in the law, such as Mr. Volokh, are misidentifying the trends and motivation behind them and underestimating the extent to which judges don't share that faith — or at least believe themselves to be its main prophets.

Increasingly, it seems to me that marriage, and the amendment to protect it, represent just about the strongest conceivable position from which to push back on this attack on the Constitution and, ultimately, on freedom. The FMA would not only slow the tide, but it would also break justifiable pleas for equality from advocacy with less-noble intentions. And, as I've said, when the ripples settle down, when the right circumstances are achieved, it can be repealed.

Posted by Justin Katz at February 25, 2004 4:09 PM

"He said churches could raise a 'significant constitutional defense' to keeping their tax-exempt status. He noted, for instance, the Catholic Church has faced criticism for years because it doesn't ordain women as priests." Somehow it has escaped Volokh's notice that we already have a Supreme Court that is quite happy to ignore the federal constitution, or to pretend that's something is in that constitution, because of some other interest that they think is overriding. Besides, what happens when some homosexual couple sues a small church because it won't "marry" them (after having joined the church aways earlier for that very purpose?) and the church settles because it can't afford to defend itself, and a precedent is thus set? How long will it take, how many attempts will be required, before homosexualists find some judge, some where, who will "find" some "reason" to side with them against some religious organization? Not as long as we might be tempted to count on.

Posted by: ELC at February 25, 2004 4:40 PM

Exactly. My point, essentially, is that the issues are folding together such that folks who seek the balanced middle, such as Eugene Volokh, must (hopefully) begin to see what has been just a vague fear of those on the religious end as a cause requiring action.

My further contention is that various considerations, mainly of a political nature, make a Constitutional stand on the marriage debate a reasonable, and reasonably limited, place to consolidate efforts.

Posted by: Justin Katz at February 25, 2004 4:46 PM