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.”