Religious Liberty and the Ruling on Prop 8

by Matthew Raley

Last week, the 9th Circuit Court of Appeals ruled that Prop 8’s ban on gay marriage is unconstitutional. No surprise there. The real question is what will happen at the U.S. Supreme Court, and what the implications will be for religious liberty.

Some observations:

1. It is not clear how the Roberts Court will rule on Prop 8. The outcome will likely depend on Justice Anthony Kennedy, who remains the swing vote on many issues. I will be surprised if the court renders a sweeping decision on the gay marriage question. Look for a narrow one.

This is a weak position for traditional marriage supporters. A narrow ruling against Prop 8 has the effect of institutionalizing gay marriage in the U.S., where a narrow ruling in favor of Prop 8 merely keeps the issue in play.

2. Suppose the high court upholds the 9th Circuit’s decision and gay marriage becomes the nation’s new legal default. A church’s liberty to sanction only marriages between a man and a woman comes into question, and the legal climate for this kind of liberty is very mixed.

In 2010, the high court ruled in Christian Legal Society v. Martinez that a public law school could refuse to recognize a religious group that did not abide by the school’s anti-discrimination standards. The fall-out from that decision is being felt by Christians at Vanderbilt, a private university. The vice chancellor recently told Christian groups that they have to allow non-Christians to be members and even leaders of their organizations if they want official recognition. He said in a public meeting, “We don’t want to have personal religious views intrude on good decision making on this campus.”

A rare moment of candor from a PC mandarin, and a glimpse of what life will be like if tweed totalitarianism gains even more power. There’s religious decision making, and then there’s good decision making. We just want you to make good decisions. That’s all.

There are examples of this pushiness elsewhere. New York City recently expelled churches from using public schools on Sundays. (The Supreme Court refused to hear a challenge.) The Obama administration decided to force all organizations to provide health insurance that covers contraception, even Catholic institutions. Though the administration has wavered in recent days, it has shown what it really thinks about religious liberties. Catholic adoption agencies in Illinois are closing rather than comply with the state’s new non-discrimination policy. A New York Times article about the controversy makes clear that religious liberty claims are insensitive and tiresome.

Some progressives clearly have an appetite to purge religion from civic, legal, and academic life. Not all progressives. There are those who agree that churches should not be forced to allow gay marriages, or to support any of a host of other choices sanctified by the vice chancellor of Vanderbilt. Such honest progressives recognize the importance of conscience.

So there is some ballast against those who want a purge.

In addition, recent infringements on religious liberty have to be balanced against the Supreme Court’s unanimous decision last month that anti-discrimination employment laws must respect a ministerial exemption. The decision is sweeping, and may be a game-changer for churches.

3. The practical threat to religious liberty will not come from the suave bigotry of vice chancellors, or from gay marriage laws like the one Governor Christine Gregoire signed in Washington State this week. The threat will not come from homosexuals as a group, or from progressives.

The most practical threat is from lawyered-up thugs. In their mania for a religion-free society, radical activists will use lawsuits as a shakedown tactic. They will not need friendly Supreme Court decisions. All they will need is money enough to sue — and they have plenty. They will move  from suing cities over crosses and nativities and public prayers to suing churches for “discrimination.”

I have spent years in ministry opposing the attempts of the religious right to turn churches into centers of political activism. Demagoguery and money do not impress me. And if I have not countenanced toxic activism from the right, even though I’m a political conservative, I certainly will not roll over for the cultural left, with which I have no sympathy whatsoever.

I fear we are headed for a new low in American discourse, in which public debate is abandoned in favor of lawsuits. If so, the civil society that has made America strong will splinter, and the conscience of every person will be at the mercy of the best financed pressure group.

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