Saturday, May 06, 2006

Sexual Liberty vs. Religious Liberty: "The Battle of Our Times"

Maggie Gallagher has written what seems to me to be the most important piece of journalism so far this year here. It's about the coming conflict between new laws protecting sexual freedom (usually seen as laws banning discrimination against homosexuals) vs. the old ones protecting religious freedom. (HT: the Corner.)

It's just filled with strategic insights, backed up by quotations from the reasonable, moderate supporters of the new sexual freedom laws, who regretfully find no real way to prevent a massive conflict with religious liberty. You really should read it all, but I'm going to try to tease out the key insights.

1) The creation of non-discrimination laws is not just the state being neutral between two groups, it is the creation of a supportive social and legal network for the party being protected from discrimination. Think of it this way: is it easier legally to be black or to be a white-supremacist in the United States? It's easier legally to be black: that's the way the law is intended to work, and that's the we, the American people, want it to work.

Here's how Chai Feldblum puts it:

She'd been thinking through the moral implications of nondiscrimination rules in the law, a lonely undertaking for a gay rights advocate. "Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad," Feldblum points out. In employment law, for instance, "we allow discrimination against people who sexually abuse children, and we don't say 'the only question is can they type' even if they can type really quickly."

To get to the point where the law prohibits discrimination, Feldblum says, "there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn't tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws."

In other words, the legal framework of discrimination law is that while animus (free-floating dislike that doesn't have to justify itself) against the protected category (e.g. blacks or homosexuals) is legally disabled, animus against discriminators (i.e. racists or those who believe homosexuality is wrong) is not disabled, and even seen as a public good.

Or think of homosexual sex as like abortion, as Robin Wilson does:

When Anthony Picarello approached her about thinking through the impact gay marriage may have on religious institutions, she had a ready model at hand: the struggles over conscience exemptions in the health care field after Roe v. Wade elevated abortion to a constitutional right.

Wilson predicts "a concerted effort to take same-sex marriage from a negative right to be free of state interference to a positive entitlement to assistance by others. Although Roe and Griswold established only the right to noninterference by the state in a woman's abortion and contraceptive decisions, family planning advocates have worked strenuously to force individual institutions to provide controversial services, and to force individual health care providers to participate in them."

"This litigation after Roe," she says, "provides a convincing prediction about the trajectory that litigation after Goodridge will take."

If homosexual sex is a protected activity, then it should have a positive entitlement to assistance by others, in the same way that heterosexual sex does (via marriage laws, etc.).

2) The state and society now see non-racist churches as a good thing for society. Racist churches are tolerated but burdened with a whole variety of legal impediments, from lack of tax-exemption, to ineligibility for public funds. If sexual liberty achieves legal status like racial liberty, then that positive evaluation will be restricted to non-racist, non-homophobic churches.

No church will be, for example, forced to bless/acknowledge homosexual unions -- that is by all accounts a red herring -- but churches that don't may lose some or all of the state cooperation and implicit support that they now take for granted. In other words, the Catholic Church or the Southern Baptists or the LCMS will be treated by the law like the "World Wide Church of the Creator" or at best like Bob Jones University: a necessary social evil, that the state does not cooperate with in any activity whatsoever.

It is true that tax-exemption, etc., are benefits granted by the legislatures, so a regime different from that used in racial discrimination can be constructed. But the legislature has to have people willing to vote that way. In Massachusetts, the law proposed by Gov. Romney to exempt religious social service organizations from sexual orientation discrimination laws is widely predicted to fail.

3) Homosexual "marriage" is important because a) it denotes formal state support of (at least some) homosexual activity as a social good, hence making it more likely that the full anti-discrimination regime will be applied to those who reject it, and b) it removes the ability to use "married" vs. "unmarried" as a proxy for homosexual vs. heterosexual. Previously in Massachusetts, the Catholic church had refused to place children with unmarried couples -- homosexual or heterosexual. After homosexual "marriage" was legalized in Massachusetts, the church's policy toward homosexual couples had to be made clear and open: we do not place children with homosexual couples regardless of their legal status. That's discrimination and hence Catholic Charities is no longer allowed to arrange adoptions in Massachusetts.

4) The passing of discrimination laws does not ban the contrary viewpoint but in practice allows a vehicle for the continual low-level harrassment of those who hold the contrary viewpoint. Even if this harrassment is not upheld by the courts, it is effective in silencing opposing opinion. (This is of course, exactly how it was and is intended to act in the case of racist views -- racism is not banned, but expressing it in many social settings can result not just in being dislike, but in being fired or otherwise disadvantaged.) Maggie Gallagher:

A few days after I interviewed Stern, an Alliance Defense Fund press release dropped into my mail box: "OSU Librarian Slapped with 'Sexual Harassment' Charge for Recommending Conservative Books for Freshmen." One of the books the Ohio State librarian (a pacifist Quaker who drives a horse and buggy to work) recommended was It Takes a Family by Senator Rick Santorum. Three professors alleged that the mere appearance of such a book on a freshman reading list made them feel "unsafe." The faculty voted to pursue the sexual harassment allegation, and the process quickly resulted in the charge being dropped.

In the end the investigation of the librarian was more of a nuisance--you might call it harassment--than anything else. But the imbalance in terms of free speech remains clear: People who favor gay rights face no penalty for speaking their views, but can inflict a risk of litigation, investigation, and formal and informal career penalties on others whose views they dislike. Meanwhile, people who think gay marriage is wrong cannot know for sure where the line is now or where it will be redrawn in the near future. "Soft" coercion produces no martyrs to disturb anyone's conscience, yet it is highly effective in chilling the speech of ordinary people.

The article doesn't talk about options for response, but clearly there are four possible outcomes:

1) The sexual liberty movement wins, and orthodox churches are treated as suspect (not banned, but suspect) groups by state and society.

2) The anti-sexual liberty movement wins, and homosexuals, couples living together outside of marriage, etc. are treated as suspect (not banned, but suspect) persons by state and society. (This would be basically a return to the status quo ante, c. 1970).

3) The whole apparatus of state involvement in society is cut so far back that it does not significantly advantage either orthodox churches and "sexual minorities". This would involve abolishing tax exemption for all churches, abolishing all routing of funds for social services through any churches, elimination of most anti-discrimination laws and so on.

This outcome is both extremely unlikely and also very unsatisfactory. In essence the orthodox religious case is that racial discrimination is always wrong, but discrimination on the basis of sexual conduct is not always wrong, and is in fact often right. In other words, it rests on an assertion about human life that race and sexual conduct are different in their moral status. Outcome 3 is just as much a refutation of this assertion as outcome 1: one produces it by banning discrimination on the basis of sexual conduct, the other by no longer banning discrimination on the basis of race. Either way, from the point of view of the truth about our human condition, this is not an ideal outcome. Attempting to pursue this course is thus not only a distraction, but also in a vital sense a concession to the argument of the sexual liberty movement that sexual liberty is not harmful to society.

4) Neither movement really wins. This could play out in different ways in different places. In some regions, something like a real balance of legal (dis)approbation between both homosexual activity and orthodox churches could result, as all laws against homosexual practice are abolished, and marriage laws weakened, but "sexual orientation" is not treated as a protected class. In others, a new, more partial, anti-discrimination regime would be manufactured for homosexuals, one that does not disadvantage orthodox religious groups as much as the racial discrimination regime disadvantages racist organizations.

Maggie Gallagher asks Charles Haynes:

I ask him whether his concerns [about the up-coming clash of sexual and religious liberties] are shared by the wide spectrum of religious and civil rights groups he deals with. "Everyone's talking about it, thinking about it," Haynes tells me. "There are a lot of different ideas about where we are going to end up, but everyone thinks it is the battle of our times."

You can be part of the "everyone" who knows what's happening and read this article, or you can be part of the nobodies, who don't, and then wonder what's going on. It's your choice.

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