Friday, May 19, 2006

Maggie Gallagher's Slippery Slope

There’s a problem with the First Amendment, which reads, in part, “Congress shall make no law…prohibiting the free exercise [of religion].” That does not mean, however, that there is a general right to ignore the law by pleading religious exemption. During Prohibition, Christian churches were still allowed to serve wine during communion, but in 1990 the Supreme Court ruled that Native Americans could not use banned drugs during religious ceremonies.

Eugene Volokh explains, “a wide range of generally applicable laws -- murder law, theft law, rape law, and so on -- must be applicable even to religious objectors. Even as to more controversial cases, such as bans on race discrimination in education, or generally applicable tax laws, the Court found…that religious objectors' claims must yield.”

In a recent issue of The Weekly Standard, same-sex marriage opponent Maggie Gallagher argues that legalizing gay marriage will result in a wave of unforeseen legal consequences for people who have, in the words of Georgetown law professor Chai Feldblum, “an alternative moral assessment of gay men and lesbians,” constituting a violation of the First Amendment’s free exercise clause.

In March of this year, Catholic Charities of Boston announced it was shutting down its adoption services. In Massachusetts, organizations who arrange adoptions must be licensed by the state, and following 2003’s Goodridge decision by the state supreme court legalizing gay marriage, Catholic Charities could no longer follow Vatican teachings on gay parenting by declining adoptions to same-sex couples and operate in accordance with the law.

Is it discrimination to prevent people from discriminating? Does that violate the First Amendment?

If your answer is yes, legal precedent is against you. Gallagher’s plea for religious exemption hinges on the unsupportable idea that sexual orientation is an arbitrary characteristic substantially different from race, gender or other characteristics for which discrimination has been banned. “Once sexual orientation is conceptualized as a protected legal status on par with race, traditional religions that condemn homosexual conduct will face increasing legal pressure regardless of what courts do about marriage itself.” She predicts, “people and groups who oppose same-sex marriage will soon be treated by society and the law the way we treat racists.”

Her only basis for justification of anti-gay discrimination is the historical prejudice of “traditional religions,” which she argues is protected by the First Amendment. She overlooks, conveniently, that the harshest arguments in favor of slavery and against miscegenation were religious.

Is orientation-based discrimination substantially different than racism? “To make someone suffer penalties because of their sexual orientation is on the same level as making people be penalized for their gender, or race,” says Archbishop Desmond Tutu. “I wanted…to reaffirm my wholehearted support of freedom from discrimination for lesbian and gay people. I do so because I believe that all forms of persecution are wrong. As my husband said, ‘I have fought too long and hard against segregated public accommodations to end up segregating my moral concerns. Justice is indivisible,” said Coretta Scott King. The NAACP has endorsed legalization of same sex marriage.

Opponents of marriage equality often cite a “slippery slope” argument: if we legalize gay marriage, the next thing coming is polygamy, followed by “man on dog” sex followed by Armageddon. But there is a slippery slope to the argument in favor of religious exemptions to the law, as well: if we can discriminate arbitrarily on sexual orientation, then we can discriminate on a religious basis against anything.

“This is a tragedy for kids,” Gallagher quotes Marylou Sudders of the Massachusetts Society for the Prevention of Cruelty to Children on the closing of Catholic Charities’ adoption division. No doubt. But what Gallagher tries hard to downplay is that the government didn’t shut down the organization, it closed of its own volition, rather than comply with the law.

The scope of this self-inflicted tragedy was highlighted by Dahlia Lithwick earlier this year: “There are 119,000 children waiting to be adopted in this country, about half of them racial and ethnic minorities. There are approximately 588,000 children in foster care. [People] pushing bans on gay adoption and fostering must thus argue, without empirical evidence, that it's better for these children to languish in state custody, or bounce from foster home to foster home, than be raised by gay parents who want them. And just as there are no data to support the claim that children raised by married gay parents fare worse than children raised by heterosexual parents, there are no data to suggest that foster care is preferable to gay parenting. That's why virtually every serious child welfare entity, including the American Academy of Pediatrics, the American Academy of Family Physicians, the Child Welfare League of America, the National Association of Social Workers, and the American Psychological Association, recognize that gay parents are no worse than heterosexual ones.”

The compromise the courts have worked out on the First Amendment conflict basically says that Americans have an unfettered right to believe whatever they want; however, they may not act on those beliefs in ways that contradict the law.

As Lithwick said in an earlier essay, “In order to be "neutral" toward all religions, including atheism, the courts have had to erect equal barriers to all. In order to privilege no religion (or even non-religion) the courts have elected to privilege none.”


Jarred said...

Well said, Andy.

Of course, it also amazes me how many people stop to consider that the "religious discrimination" argument is a double-edged sword when it comes to gay marriages. After all, there are several religious instutitions (the MCC, UUA, and COG come to mind most readily) who believe in same-sex marriages and wish to perform such legally binding ceremonies for same-sex couples. Could not one as easily argue that trying to prevent them from doing so is a form "religious discrimination" as well?

Andy said...

Yes, and in fact that argument has already been advanced. A coalition of clergy and organizations from various faiths in New Jersey wrote an amicus brief to the state Supreme Court in support of legalization of same marriage making exactly that point: legalization doesn't inhibit free exercise, it enhances it.

little-cicero said...

Does Gallagher make this about homosexuality or the definition of marriage?

Is she against civil unions?

Also, does she actually stress bans on gay adoption or just heterosexual priority based on the simple concept that every child has a right to a mother and a father?

I'm going to try and make my arguments as relevant and original as possible upon reading your answers. Wish me luck!

Andy said...

Her article is not as rabidly written as it might have been coming from some other conservatives. That's what threw me at first, thinking maybe this was a fairly objective piece. But the more I thought about it, the more I realized how shallow her argument is.

Though she is President of the Institute for Marriage and Public Policy, it's not really gay marriage that she fears in this article, as evidenced by this sentence: Once sexual orientation is conceptualized as a protected legal status on par with race, traditional religions that condemn homosexual conduct will face increasing legal pressure regardless of what courts do about marriage itself.

She wants a carte blanche religious exemption for sexual orientation discrimination.

Her article was not really focused on adoption so much as saying, "Here's one unforeseen consequence of legal protection for gay people." Unforeseen? That organizations will have to comply with the law or face consequences? She frames it as if it's this major impending First Amendment crisis, that among other things adoption agencies will start going out of business. If they do, it will only be because, as in the case of Catholic Charities, they value their First Amendment right to discriminatory beliefs more than the needs of children.

Jarred said...

Ah, I wasn't aware of that. Obviously, I need to work on staying better informed. ;)

kr pdx said...

I was pretty mad back when the ruling came down against the Indians on the controlled substances question--not even realizing that my Church had a countervailing favorable ruling in precedent. Now it's even stupider.

"as in the case of Catholic Charities, they value their First Amendment right to discriminatory beliefs more than the needs of children." I love you, but this is bigotted. From strict Catholic understanding, giving children to gay couples encourages those couples to consider themselves morally OK (which the Church considers them not to be--oh please anyone who wasn't here 3/9 go read that string instead of jumping on me now) and would also put the children into a situation where they would learn that an "objectively immoral" set of assumptions and activities is "just fine." It would not, from Catholic Charities' point of view, serve "the needs of children" to place them in such households, and while their current situations (foster care etc.) might also not "serve their needs," at least they are subject to change--after an adoption, not so much. Being directly responsible for encouraging others to something one considers a sin? Not morally justifiable ... surely even though we disagree on the particular crux of this action you can see that they are trying to make the most moral choice they see.

They perceive the needs of the children very differently than you (and, yes, a great many others), and in their eyes they are serving them the best they know how.

kr pdx said...

PS You should have taken a real vacation, and not blogged, you goofball.

Andy said...

KR, I've actually been writing this post for a week and finally finished it yesterday morning during a momentary lull at work before I left for the airport.

I didn't want to go off without writing a controversial post, for fear that Little Cicero would have nothing to do.

As for the meat of your comment, I do understand, because at first my reaction to this article was, hey, wait, this is wrong, of what value is the right to "free exercise" if in fact the government can restrain you from acting in accordance with your beliefs? To me, it's very much like when conservatives say gay people DO have the right to marry, they just have to marry someone of the opposite sex. "Our" response is, of what value is the right to marry (and, for the record, the Supreme Court has recognized a fundamental right to marry) if that precludes the partner of your choice?

So I do completely understand your objection. But it's a little bit like, which came first, the bigot or the Catholic? It's the Catholics (and others) who are trying to argue that same-sex parents are by definition inferior to heterosexual ones. The courts can't accept moral prejudice as basis for law (see Lawrence v. Texas), and since people on the conservative side of this issue have nothing else to offer, they have no legal standing.

And this doesn't address the very valid slippery slope argument. If the government can recognize a Catholic's "alternative moral assessment" of gay people and offer exemptions on that basis, what other discrimination statutes might fall because of "alternative moral assessments"?

Trickish Knave said...

I have nothing really to add to these posts, as usual with your gay oriented commentary.

I am neither gay nor Catholic, both being as foreign to me as as a rational thought to a feminazi at a "Kill all men" rally. If the Church is such a pain in your ass then why don't you switch to a denomination that is more gay friendly like the ones Jarred spoke of?

My wife is Catholic, although she uses the term "non-practicing" like the Catholic Church doesn't mind if you don't come to church for years at a time or only attend on significant holidays- once a Catholic, always a Catholic? She has her own views on the Church and their rules, the Pope, etc. and they way she explains it I can see why she is non-practicing and why she wants to join me at a Southern Baptist church.

Hope you had a good vacation. As a sea-locked denizen of this island, beach is all around and the parts that aren't tainted with raw sewage from a dilapdated, outdated, and poorly maintained infrastructure are actually really relaxing.

kr pdx said...

But see, then you still have to maintain the blog ...

I wasn't saying they should get a legal exemption (I recognize that is a slippery slope that our legal system is increasingly avoiding--ironic that they are developing an absolute secular morality ;) ), I was just saying you, personally, are unfairly assigning Catholic Charities a viscious opinion when they are trying to be honest and caring, and to make the most moral choice. You don't agree with their moral assumptions, but that doesn't mean they are acting immorally. Since God doesn't directly miraculously change people's minds and thinking, the most moral choice a person can make with the evidence they have is probably not going to the The Right(-est) Choice Possible.

Which is, dear sir, why even though I at this time still think homosexual actions are what LC so insistently calls Objective Sin, I don't think that choosing those actions is necessarily always So Sinful as I admit mainstream condemners seem to believe. I expect there is always a better choice to be made--just as you think there is a better choice Catholic Charities could have made.

PS I will call your cell again in case the message this morning failed--my whole family is really sick, so you'll see just about everyone except us tonight :(.