In this post, I’d like to make four points in response to Rick Garnett and Doug Laycock.
1. Both Rick and Doug reject the idea that it should violate the separation of church and state for the government to enact laws for the purpose of imposing one group’s religious beliefs on non-believers. This is only tangentially related to the primary issue under discussion, but it is sufficiently important to merit a reply. Suppose a city enacts a law providing: “No person may work on the Christian Sabbath because such conduct is sinful.” I daresay that such a law, or any law like it, would necessarily violate the First Amendment, as the Supreme Court itself has expressly recognized. Indeed, it is just as much a violation of the Constitution for government to enact a law in order to impose one group’s religious beliefs on non-believers as it would be for government to enact a law for the purpose of disadvantaging African-Americans, or women, or Jews. Of course, it is often very difficult to ascertain the “real” motivation underlying legislation, and groups with constitutionally impermissible motives will usually mask them behind pretextual justifications. But this doesn’t make such laws constitutional. It just makes it difficult, often impossible, for courts to ferret out the unconstitutional motivation. But they are, in principle if not in practice, surely unconstitutional.
2. Both Rick and Doug argue that because some people regard gays and lesbians as “sinners” they should have a legally recognized right to discriminate against them. Of course, this position would also allow people with religious objections to racial integration and miscegenation to have a legal right to discriminate against African-Americans and persons in mixed-race marriages. This is hardly fanciful, by the way. We have a long and rather embarrassing history of wielding religion in opposition to equality. Such arguments were fervently made, for example, in support of laws imposing racial segregation and forbidding miscegenation. In 1867, a Nashville clergyman preached that “a man cannot commit so great an offense against his race, against his country, against his God” as “to give his daughter in marriage to a Negro – a beast – or to take one of their females for his wife.” A century later, Georgia senator Herman Talmadge insisted that “God himself segregated the races,” Mississippi senator Theodore Bilbo warned that miscegenation is a sin “in direct defiance of the will of God,” a Methodist church in North Carolina proclaimed that “the intermarrying of the races” is “contrary to the very ordinance of God,” and a federal judge declared that God “did not intend for the races to mix.” These views were widely shared and often invoked as a reason for the state to forbid both racial integration and racial intermarriage. Presumably, Rick and Doug would permit those who believe that miscegenation and racial integration are sins to opt out of all laws requiring non-discrimination, just as they would for those who believe same-sex couples are sinful.
3. There is an interesting inconsistency, I think, in Rick and Doug’s view that religion should be allowed both to dictate the terms of the secular law and be exempt from laws of general application. I always thought of religion as special in a more reciprocal way. That is, in my view, religion may not dictate the terms of the secular law, but it should be exempt from at least some laws of general application. Rick and Doug seem to think religion can have it both ways. It gets both to dictate the law and to be above it. I think not. The better view is that the relationship between religion and law is a compromise – religion stays out of secular law and secular law stays out of religion.
4. Because I think secular law should stay out of religion, I support the idea that there are circumstances in which even laws of general application should not be applied to religious institutions. Thus, I think H.R. 2234 is right to provide that nothing in the legislation “shall interfere with or regulate the religious practice of any religious body” and that any religious body “is free to choose whether or not to solemnize or officiate a civil union.” But Rick and Doug want to go far beyond that. They want the law to allow any tomdickandharry who claims his objection to civil unions or to gays and lesbians is grounded in his religion to discriminate against them at will.
This is wrong-headed for many reasons. First, as already noted, it would logically apply to racial discrimination as well as discrimination based on sexual orientation. I doubt (though perhaps I’m wrong) that either Rick or Doug would have allowed Southern racists to refuse to serve African-Americans in restaurants or to employ them or to forbid mixed-race couples from staying in their hotels on the plea that their “religion” demands this.
Second, although it is appropriate to create religious-based exemptions to some laws of general application, I think this should be limited primarily to those exemptions that burden the state rather than the rights of other private individuals. Thus, I would distinguish between religious exemptions from military combat, on the one hand, and religious exemptions from anti-discrimination laws, on the other. When the rights of other individuals are at issue, the presumption should be against religious exemptions.
Third, as Rick notes, it is difficult to draw “clear lines” between “moral” arguments and “religious” arguments. He makes this point as a reason for not excluding religion from law-making, and as I've already noted, I think there is a lot of practical force in this observation. But it should be applied consistently. The same difficulty infects the effort to decide whether any particular individual who wants to discriminate against mixed-race couples or same-sex couples is basing his discrimination on religion, or moral beliefs, or just plain ignorant hatred. Do we really want courts to inquire into the subjective motivation of every racist or homophobe who claims that he won’t serve African-Americans or gays because of his “religious beliefs.” This would be a nightmare scenario. It is, in short, a simply awful idea.