Religious Liberty vs. Same-Sex Marriage: Is There Really a Conflict?

Chief among claims from opponents is that legalizing same-sex marriage will infringe on the religious freedom of those who oppose the practice on theological grounds.
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As the campaign to legalize same-sex civil marriage gains momentum across the country, opponents are employing new tactics to defend the status quo. Chief among those is the claim that legalizing same-sex marriage will infringe on the religious freedom of those who oppose the practice on theological grounds.

As a both a devout Catholic and a supporter of marriage equality, I would like to believe that the rights of my more conservative co-religionists and my lesbian, gay, bisexual and transgender friends can be reconciled through careful legislative draftsmanship. However, the bishops of my church and their allies have demonstrated no interest in reconciliation. Rather, they have taken an uncompromising stand based on principles that they readily ignore at other times, and blurred the distinction between freedom and entitlement in troubling ways.

To be taken seriously, appeals to religious freedom must be rooted in consistent teaching and practice. The arguments advanced by opponents of marriage equality do not meet this standard.The Catholic Church, for instance, recognizes only marriages conducted under its own auspices. It does not recognize marriage after divorce, unless the partner seeking to remarry has obtained an annulment. By Catholic standards, then, most of the marriages in this country are null and void.

Yet the bishops, bankrolled in large measure by the Knights of Columbus, have spent millions of dollars to keep gay and lesbian couples and their children from achieving equality under American law, while maintaining a discreet silence about the rights of heterosexuals whose marriages do not conform to church teaching. It is easy to grasp the political reality that informs this strategy: gays and lesbians are few, while what the church regards as unsanctioned marriages are legion. But in deploying arguments rooted in religious liberty only when they are politically advantageous, the bishops have diminished the currency in which they trade.

Religious conservatives also argue that they will no longer be able to help provide essential social services if they are forced to treat same-sex couples in the same way that they treat other clients. They cannot, in good conscience, offer adoption or housing to same-sex couples, they argue, and if compelled to do so, would have to cease providing such services entirely. Intentionally or otherwise, opponents of same-sex marriage present public officials with a choice between marginalized populations -- the poor and the orphaned on one side, lesbians, gay men, bisexuals and transgender people on the other.

But my bishops and their allies are not being forced to conform to laws they find morally repugnant. Rather, they are being asked to decide whether they will continue to accept significant government subsidies that come with certain strings attached. Religious organizations that do not accept such funding do not have to abandon their ministries to the poor and the needy. They can follow the lead of the Mormons -- or our own Catholic history -- and finance their ministries themselves. Nor will their refusal of government subsidies fray the social safety net, as other less ideologically rigid groups, which already compete for the same grants, will take up the slack.

In the literature on religious liberty and same-sex marriage cited by religious conservatives, several cases stand out. These tend to involve a small businessperson who has been sued for refusing to provide services at the wedding, or commitment celebration of a gay or lesbian couple. In reading these cases, one is struck first by the wish that everyone involved had used better judgment, and second by how the use of a high-flown term like religious liberty distracts from the wild asymmetry of what is at stake for the various parties. Perorations on the First Amendment notwithstanding, opponents of marriage equality are arguing that same-sex couples should be denied the emotional and legal benefits of marriage to spare theologically conservative bakers the ordeal of making them wedding cakes.

One would like to think that sufficient protections for pious cakesmiths and other interested parties could be written into law if religious conservatives were clear and candid about the ways in which their freedom might be infringed. But such clarity would open a path to the speedy legalization of same-sex marriage, and so my bishops and their allies play the victim card instead. In doing so, they demonstrate that they are not interested in protecting liberties, but in denying them.

Marianne Duddy-Burke is executive director of DignityUSA, a member of the Equally Blessed, a coalition of Catholic groups that work on behalf of LGBT people and their families.

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