David Rodeback's Blog

Wednesday, June 7, 2006

The Marriage Protection Amendment, Part IV

I support the Marriage Protection Amendment for two reasons. One is structural and procedural, and the other has to do with religious freedom itself.

This is Part IV (and probably the last) in a short series of articles on the Marriage Protection Amendment and, more broadly, the question of reinforcing or expanding the legal definition of marriage. Part I looked at the proposed amendment itself and some procedural details. Part II began our journey through the reasons people give, or might give, for their support or opposition. That journey continued in Part III. In this part, as promised, I'll tell you what tips the scales for me, and in which direction.

I am conscious of all the questions, issues, reasons, and explanations I cited in the previous articles, and a number of them are important to me personally, but the reasons which move me to support the Marriage Protection Amendment -- there, I finally pinned myself down for you -- are not precisely any of those.

Both my reasons have to do with freedom. (Ironically, it is freedom that many opponents of the proposed amendment cite as well.) One involves the structure and process of governments in the United States, which are important safeguards of freedom. The other has to do with religious freedom itself.

My reasons may seem trivial to you, in comparison to some of the reasons I have discussed in previous articles. I can live with that. To me they are decisive, not trivial.

The Separation of Powers Matters

The proposed amendment's sponsors say that we need a constitutional amendment defining marriage to prevent state and federal judges from legislating gay marriage's legality. I'm not a fan of gay marriage under any circumstances, but it would be easier to accept if it were created by legislators -- elected representatives of the people -- instead of being imposed by judges, most of whom are not elected.

In our state and national governments, we value the separation of powers, which limits government and protects our freedoms, among other things. Legislators make the laws. Judges adjudicate them. Confusing these roles damages the system, discredits the rule of law, and threatens tyranny.

Consider the recent example of Georgia, where the people voted overwhelmingly in a statewide referendum to enforce the one man-one woman definition of marriage. A state court overturned the will of the people, citing an essentially imaginary technicality. In other words, "government by the people" was overridden by "government by judicial fiat."

Judicial legislation is particularly malicious when it involves controversial moral questions of general interest, such as abortion and the definition of marriage. If we're serious about self-government, we reserve making laws in these areas especially as the sole province of  the leaders we have elected to make laws, or the people themselves.

Amending the US Constitution requires supermajorities of the people's elected representatives in both houses of Congress -- that's just to propose the amendment -- and then majority votes in three-fourths of the state legislatures. This is where laws should be made, and this is a reasonably safe mechanism for making them. Along the way, if both House and Senate vote to send the amendment to the states for ratification, much time will pass and there will be vigorous debate in every state, as befits a serious issue involving society's basic unit, the family. That is far different and far more democratic than one or two or three or five judges somewhere deciding what the law should be, and it is consistent with the structure of our governments and the principles behind that structure.

Religious Freedom Matters Even More

It may seem odd that I cite religious freedom as a reason for supporting the Marriage Protection Amendment. Let's talk about religious freedom in general first, and then I'll explain its application here.

Here in the United States, one of the few places where religious freedom has even been tried for an extended period, we are still not very good at it. Consider this sampling of our history:

When religious freedom was codified in the First Amendment to the United States Constitution, it was still somewhere between novelty and experiment even among the original colonies (which had lately become states). Yes, the Pilgrims and others fled to America to escape religious persecution -- but they were looking for a place where their own faith would be the dominant religion, not a place where each person would be free to choose what (if anything) to believe and how (if at all) to worship. There were happy exceptions, but new communities tended to be as intolerant of religious diversity as the nations of Europe.

Most of a century had passed since the First Amendment became constitutional law, with its prohibition of a state church and its guarantee of citizens' free exercise of religion. Yet the Mormons actually had to flee the United States, as it then existed, to escape destruction -- and even then Congress sent an army.

Our more modern struggles with religious freedom have a less brutal flavor, but still illustrate an incomplete mastery of it. It's okay with state and federal courts now if a public school wants to have schoolchildren live as Muslims for two days, prayers and all. But the foundational text of Judeo-Christian morality, the Ten Commandments, is unwelcome anywhere in public view. In some ways we're edging towards a mass hypersensitivity where no one has the right to believe, practice, teach, write, or say anything that might make another person uncomfortable. (The obvious exception is Christian conservatives, whose discomfort does not much trouble the PC crowd.) While on one hand earth worship and bad science command the faith of many and threaten to be imposed by federal law, on the other hand we're still mixing up freedom of religion with freedom from religion.

Religious Freedom's Continuing Importance

Yet there remains some evidence that our collective commitment to religious freedom is -- or at least has been -- very strong indeed. It is not just another freedom; it is the central and overriding freedom. Consider the case of the conscientious objector.

Our law allows an individual who is subject to being drafted into the military to be excused from service because his religious faith tells him that participating in any war for any reason is evil. This law essentially says that religious freedom is more important than justice or, shall we say, fairness. There is nothing fair about excusing a person from military service on religious grounds. It's not fair to those who are not excused, and it's certainly not fair to the families of the soldiers who die. For that matter, this law values religious freedom above the state's basic interest in self-preservation, because it decreases the available fighting force and may damage the morale of actual draftees. But we are willing to endure all of this  because religious freedom is so important to us.

What would be religious freedom's rivals? Freedom of speech is hollow if all speech is free except when it pertains to religion. Freedom of assembly means much less if one is free to assemble for any purposes except religious activity. The right to trial by jury is diminished if one is being tried before a jury for violating laws prescribing or proscribing one's chosen religious activities. Freedom of the press loses much of its meaning if printing or distributing religious materials is forbidden. And so on.

What does this have to do the Marriage Protection Amendment or the issue of legalizing gay marriage?

They're Already Using Gay Marriage to Limit Religious Freedom

In a sense, this is a slippery slope argument, but it's not the same slippery slope I described in an earlier article. For such an argument to be valid, one must observe (a) that we are on a slope, and (b) that there is a real and significant political or societal pressure to move further down the slope. I think there is evidence that both are the case here.

Consider these five major intersections of government authority and religious institutions in the United States: adoption, weddings, tax-exempt status, educational institutions, and basic freedoms (of speech, assembly, etc.).

Adoption is where the most obvious current problem exists. In Massachusetts, where gay marriage is the law, Catholic Charities were essentially given a choice: be willing to place children with gay couples, despite Catholic doctrine's rejection of homosexuality, or get out of the adoption business. Essentially it was a choice between ceasing to be what they are or letting go of one of the major reasons for their existence. That there are other adoption agencies available is not the point, but it does keep this from being a social crisis. The point is that a private religious institution is no longer free to operate according to its church's doctrine, in activities which help people.

No doubt, if this problem occurs in other states, it will be solved reasonably in some. That doesn't appear to be in Massachusetts' immediate future, however, which is bad enough. Still worse is the fact that this episode signals the pro-gay movement's (and bureaucracy's) willingness to trample on religious freedom. (Here's a good, very recent article on the Massaschusetts flap.)

Church Weddings may be less threatened, or at least threatened less immediately, if only because the political fallout would likely be immense. But it is conceivable that there will be attempts -- perhaps successful in places -- to stop ministers and pastors from officiating in marriage ceremonies at all, if they are unwilling to perform gay marriages, too. The reasoning will be essentially the same as with adoptions in Massachusetts. This would not bring society to a halt; those whose religious beliefs oppose homosexuality could be married civilly, and any additional religious ceremonies deemed necessary could be performed separately. But religious freedom would be diminished.

Tax-Exempt Status for churches in the United States allows them to operate without paying taxes and to receive contributions which the contributors may deduct when paying their own taxes. There have been efforts in the past to abolish that status for churches; if this were to happen, any church affected would be caught in a pincer. The same level of activity -- including charitable activity which helps society as a whole -- would cost a lot more, and at the same time there would be less incentive for people to donate funds to that church. Churches in general would not cease to exist (some might), but they would at least have to scale back their activities. I'm not one of the people who sees that as a good thing.

It is likely that the same reasoning which forced Catholic Charities out of the adoption business in Massachusetts will soon be used in attempts to deprive churches of their tax-exempt status if they make any distinction in leadership, membership, doctrine, or practices between gay couples (or homosexuals generally) and others.

Church-Sponsored Educational Institutions at every level may be at risk, at least in the sense that government student aid and research funds might be denied to institutions where doctrine and practice do not sufficiently favor gay marriage and homosexuality generally. Similar efforts have been made before over other issues, sometimes successfully. The threat to tax-exempt status is relevant here, too.

Freedom of Speech and Assembly are also at issue. If you don't already think me an alarmist, you may when I assert that there will be attempts to restrict religious proselyting and religious gatherings involving churches where doctrine and practice do not bow in humble obeisance to the gay movement. Such speech and assembly will be regarded as offensive to gays -- which I suppose it is. In a sensible world, freedom of speech automatically includes not only the possibility, but also the near-certainty, that we will often hear things that may offend us. Mature adults in free societies have learned not to be offended by everything with which they disagree. But we're not necessarily discussing a sensible world -- or mature adults.

If I note that some Western European countries already restrict and penalize such speech, you are likely to dismiss that, because it's Europe, not the US. Never mind that many political leaders, would-be leaders, and judges in the US look to Europe as a model of enlightenment, because I actually don't need Europe to make the point.

The same thing is happening on university campuses and at elementary and secondary schools across the United States, including the public ones. In many cases it involves speech on any topic which bothers anyone -- often, again, with the familiar de facto exception of Christians and conservatives. If you think I'm making this up, spend some time at the Web sites of the Foundation for Individual Rights in Education and the Center for Campus Free Speech.

A religious organization which is not free to proselyte is only half-free. If its right to meet is restricted, it's barely free at all.

Recap

In summary, then, I support the Marriage Protection Amendment for these two reasons (not necessarily in order of importance):

• It will move the lawmaking and related debate on this issue away from judges, where it does not belong, to elected legislators, who are responsible for making law and who tend to be more responsive to the people generally.
• Perhaps it doesn't have to be this way, but the fact is that gay marriage laws, where they exist in the United States, are already being used to limit religious freedom. It is reasonable to suppose that this effort will expand over time.

As I have said, there are good reasons to oppose the proposed amendment and many other good reasons to support it. But these are the two which determine my mind on the issue.

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