More on Civil Unions and Religious Liberty
I have little to add to Doug Laycock's careful response to Geof Stone's forceful post regarding, among other things, Doug's and my support for broader religious-freedom protections than the ones contained in the Illinois proposal that prompted Geof's original op-ed. As Doug explains, Geof seems to have assimilated our support for religious-liberty exemptions -- support that, in Geof's original op-ed, he said was "reasonable" -- to the views of Herman Talmadge, Theodore Bilbo, etc. This assimilation is, certainly, rhetorically powerful, but it seems, to me, dissonant with the irenic tone of his initial piece ("It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere.").
Geof says that Doug and I "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." Doug put it well, though: "We have separation of church and state, not separation of government from voters; religious citizens have the same right to speak and vote that the rest of us have." That's all I am saying. Certainly, I do not believe -- I have, in fact, good reasons, grounded in my own religious tradition, for not believing -- that laws should be enacted that merely "impose one group's religious beliefs on non-believers." Some laws (e.g., a regulation of in-private sexual activity) that some religious believers support would, if enacted, impose unjustifiable constraints on liberty and privacy; they would go beyond what I would think are the permissible limits of morals legislation. I am skeptical, though, of arguments that move too quickly from "many religious believers support this policy" to "this policy involves the imposition of religious beliefs on non-believers." The abolition of capital punishment (which I support) would involve the enactment into law of a commitment that, for many, is rooted in religious faith and teaching and would, I suppose, involve the "imposition" of that commitment on those who do not share it. But this would not make abolition unconstitutional.
Geof's third point employs a nice turn of phrase -- "[religion] gets both to dictate the law and to be above it" -- but does not, it seems to me, really respond to what Doug or I have said or believe. Sure, "[r]eligion" is not "above the law." But, a government-of-laws that respects religious freedom will both concede that there are some matters beyond its legitimate reach (e.g., which relationships a religious community chooses to solemnize) and also that, in some (not all) cases, the common good and the freedom of conscience are well served by exemptions for religiously motivated conduct from otherwise generally applicable laws. The suggestion is not that we should exempt all religious believers from all antidiscrimination laws, but that we should, in cases where doing so would not impose excessive hardship, exempt those religious institutions and believers who object, for religious reasons, to participating in same-sex marriages from requirements that they do so.
For me, Geof's post raised a question that his colleague, Prof. Brian Leiter, takes up in an interesting and provocative paper, "Why Tolerate Religion?" Most of us say -- Geof said, I though, in his opening post -- that claims of religious conscience are worthy of respect, even when these claims involve requests for an exemption, or carve-out, from a law we support, and which serves, we think, the cause of justice. But do we really think this? Why?
UPDATE: Readers who are interested in this discussion should check out Dale Carpenter's post, here.