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July 31, 2004

Inadvertent Voting and the Thrust of a Movement

On the Marriage Debate Blog, which is increasingly must-reading material for those interested in the issue of same-sex marriage, a current topic of discussion involves the likely repercussions for religious organizations should same-sex marriage become the law of the land. As part of a rebuttal to Anthony Picarello's description of some areas in which religious organizations may be compelled to pursue First Amendment lawsuits, Barry Deutsch writes (with an internal blockquote from Picarello, ellipsis Deutsch's):

Second, resisting churches may face targeted exclusion from public facilities, public funding streams and other government benefits. [...] For example, religious groups have already been excluded from public contracts. New York City has passed a law requiring any contractor doing more than $100,000 in business with the city to extend health benefits to same-sex domestic partners. Groups such as the Salvation Army--which has provided the city with millions in contract services for the needy--will be excluded from participation in those contracts because of their religious convictions.

Again, so what?

No one is denying the Salvation Army the right to their religious convictions. However, neither the Salvation Army, nor anyone else, has a right to be free of all consequences for their decisions.

Voters are free, through their elected representatives, to set up rules regarding who the government will and won't sign contracts with (within Constitutional limits; voters are not free to make a "this city will never contract with Jews" law). All employers - religious or otherwise - can set their hiring rules so that they qualify for government contracts, or not. But when the Salvation Army or any other employer freely chooses hiring rules which exclude them from government contracts, then that's their own decision, and they've freely chosen to suffer the consequences.

The first thing to note — after chuckling at an SSM proponent's appeal to voters' rights — is that Deutsch has cut out the more difficult example of the Boy Scouts' experience, in which the Supreme Court's affirmation of its First Amendment rights with respect to hiring gay leaders was hardly the end of the story for the group. Yes, he is right that the Salvation Army has simply run into the consequences of its conflict with a direct statute (and many Christians have applauded the organization's willingness to stand up for its principles), but that case is just an example, not the totality of the reasons for concern.

Indeed, discussing such possibilities now is not an attempt to make a legal argument that religious organizations should have "an absolute pass from employment law," as Deutsch puts it, but an effort to persuade citizens and lawmakers that the innovation of same-sex marriage will have far-reaching and largely unintended effects. For example, consider the variation of the argument involving religious organizations' inability to offer health insurance just to heterosexual married spouses should marriage become de-gendered. In this case, the public will not have "set up" the rules in which the organizations are tangled — especially if the law is changed at the command of a judge.

More deeply relevant, however, is that Deutsch intellectually elides an entire aspect of the debate with his parenthetical "within Constitutional limits; voters are not free to make a 'this city will never contract with Jews' law." The constitutional limits are the question. In effect, a law saying "this city will never contract with groups that recognize only opposite-sex marriages" is to say "this city will never contract with Catholics" (for one).

Deutsch may or may not choose to wade into the morass of conflicting rights and discrimination (which, after all, was the context for Picarello's statements), but it would be of questionable consistency for same-sex marriage advocates to start touting the difference between explicit discrimination and discrimination "in effect." This is particularly true for an SSM advocate who has attempted to argue that opposition to SSM and bigotry are related by definition.

ADDENDUM:
As is often the case with the posts of bloggers who support same-sex marriage, I found the comments to Deutsch's entry to be instructive.

Joe Buck's comment begins with a point that's worthy of debate: that the conflict, at least in the case of health insurance, stands as an argument for a single-payer system. While I would strenuously oppose the "single-payer" aspect, I do believe that healthcare ought to be dislodged from employment packages. But then Buck's alternative suggestion relates to a central problem with the movement for SSM: "Or, they could allow the employee to name any person (say, a mother or a brother or a friend) to receive medical benefits." More broadly applied, that's a mandate for the dissolution of marriage.

Next, Steve Duncan turns up the flame on his rhetoric:

Another 4 years of Dubya and the same sex marriage debate will be moot. We'll be discussing whether the corpses of gay people are better disposed of through incineration or burial in trenches. This is truly a gang of evil, vile, murdering thieves we're saddled with.

It isn't entirely clear how far into the society Duncan extends inclusion in this "gang of evil, vile, murdering thieves," but suffice to say that I don't suspect he'd much object to legal penalties for groups that discriminate against homosexuals. It's easy to justify regulation of what one considers to be evil.

And lastly, unless I'm misreading the intent, Echidne seems to offer one way in which such penalties could be instituted:

It's interesting that because we don't have civil rights laws about individuals as consumers the religious institutions can and do decide which services should be available for all. Think of Catholic hospitals and their policies about vasectomies and abortions. In fact, it's sort of curious that the federal laws provide no protection for discrimination when we act in the role of consumers.

Maybe this is what should be corrected, rather than a further reduction of the protections via the manipulation of employment protections?

Whatever the merits of Picarello's legal argument, I can't say I blame my fellow social conservatives for being concerned about the directions in which the "gay rights" movement could break if it achieves erasure of distinctions in the public institution of marriage.

ADDENDUM II:
Immediately upon shutting down the computer last night, it occurred to me to question Deutsch's assertion about an organization's right to withhold benefits from the spouse of "a divorced and remarried woman." Is this true — not as a matter of organizational policy, but of law? I'm not so sure; for one thing, I wasn't aware that divorcees represent a constitutionally protected group.

Whether it's true or not, it oughtn't be true. Perhaps the differing perspectives, here, have to do with political leanings and one's belief in the wisdom of endowing government with broadly and deeply reaching regulatory powers to enforce, through labor laws and the like, a regime of life choices that must be considered acceptable.

Posted by Justin Katz at July 31, 2004 2:17 AM
Marriage & Family