Gay marriage & religious freedom: a modest proposal

The efforts by several states to pass laws protecting the consciences of people with deeply held religious convictions against same-sex marriage have ignited a debate that has generated far more heat than light. Charges of state-sanctioned discrimination harkening back to the dark days of Jim Crow have been leveled at the proponents of such laws.

Such comparison to Jim Crow laws are not analogous. As The Christian Post’s Napp Nazworth deftly pointed out, Jim Crow laws were government-mandated discrimination based on race whereas the several state legislatures’ efforts merely sought to protect private citizens from being coerced by government mandate to violate their consciences.

So, what stance should early twenty-first century Christians advocate and support?

Perhaps we should begin by saying that homosexual activity between consenting adults should not be criminalized. As much as we may understand the desire of our Ugandan Christian brothers and sisters to protect their country from the moral excesses of the West, we should counsel them not to criminalize consensual homosexual activity. As our 16th-century Anabaptist forbearers testified, there should be spiritual penalties (in the church) for spiritual infractions and legal penalties (in the state) for legal infractions that harm others. Separation of church and state means among other things that the church should not use the coercive powers of the state to penalize consensual infractions it considers immoral. It also means that the state must not interfere with an individual church’s discipline of such behavior. Consequently, as a Baptist Christian I would oppose the Uganda laws there and here.

However, as a Baptist Christian, I continue to oppose changing God’s definition of marriage to include same-sex unions. Such a redefinition goes far beyond consensual behavior between adults in its social implications for society, including its impact on children. Even though it appears that the American public is increasingly coming to a different conclusion, does that mean that there are to be no legal protections for those people of faith whose religious convictions are, and will remain, at odds with the current cultural zeitgeist? Are such people (millions of American citizens who continue to hold the moral and sexual views that have dominated the Christian faith for two millennia), now to be coerced on pain of prison, fine, or going out of business to participate in ceremonies (often religious) that they find unconscionable?

Part of the problem in addressing this dilemma is a legal philosophy prominent in American jurisprudence today. This philosophy has been clearly articulated by Chai Feldblum, an Obama appointee to the U.S. Equal Employment Opportunity Commission and professor of Law at the Georgetown University Law Center. In her article, “Moral Conflict and Liberty: Gay Rights and Religion,” published in the Brooklyn Law Review, 2006 and Georgetown Law Faculty Publications, January 2010, Dr. Feldblum argues that in conflicts between the rights of the LGBT community and people of sincere religious conviction that “society should come down on the side of protecting the liberty of LGBT people.” She believes that in such conflicts it is a “zero-sum” game in which one side must surrender rights to the other.

She is in disagreement with the constitutional scholar Michael McConnell who argues that in such cases the goal should be to “extend respect to both sides … much as we treat atheism and faith as worthy of respect” and define such respect as “the civil toleration we extend to fellow citizens and fellow human beings even when we disagree with their views.” (Michael W. McConnell, “The Problem of Singling Out Religion,” 59 DePaul Law Review I, 44, 2000.)

I believe McConnell’s “respect” and “civil toleration” are far more noble goals than a “zero-sum” game where religious rights are always constricted.

How would such goals be achieved? I would propose no law allowing cafes, restaurants, bakeries, or photographers, etc. to refuse to serve the LGBT community if they offer their services to the public. On the other hand, there should be laws protecting them from being coerced to participate in same-sex wedding ceremonies. Surely, fair-minded people can see the difference between serving a couple in a restaurant or making them a cake and being forced to cater a same-sex wedding reception. There is a big difference between taking a couple’s photo and being coerced to attend the rehearsal, the rehearsal dinner, the wedding, and the wedding reception and contribute your artistic talent through photography to that which violates your conscience at the deepest levels. In the first cases you are serving the public. In the latter cases you are being coerced legally and economically into participating in a ceremony that violates your conscience.

The difference between serving gays and being forced to participate in a ceremony that tramples conscience is the very point that is most often missed in the heat of this debate.

It would be as if a bakery owned by a member of the LGBT community were coerced to cater a membership initiation ceremony at the odious and repugnant Westboro Baptist Church in Kansas. It would be as if an orthodox Jewish butcher were required to cater a pork barbecue for the pig farmers of America. It would be as if the owner of an African-American restaurant was required to cater at an initiation ceremony for the Sons of Confederate Veterans and was required upon legal penalty to bake a cake with the Confederate “stars and bars” on it, a flag they believe symbolizes the subjugation and enslavement of their ancestors.

Surely, we can find a way to follow Dr. McConnell’s path of civil toleration that protects the deeply held convictions of American citizens from being coerced. It is not as if the LGBT community will have any difficulty finding Americans willing to provide any and all of these wedding services. Why would they want to coerce and trample the religious convictions and liberties of their fellow Americans? Such coercion will not lead to greater affirmation of same-sex marriage, only greater resentment, backlash, and incivility.

Surely, we can summon what President Lincoln called in his first inaugural address (March 4, 1861) “the better angels of our nature” to do better than that. May we all resolve to seek greater civility, toleration, and respect.

—Richard D. Land, a native Texan, is president of Southern Evangelical Seminary in Charlotte, N.C., and executive editor of The Christian Post, where this column first appeared.

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