This morning, the US Supreme Court is hearing arguments on whether our Constitution requires states to recognize same-sex civil marriages. They will likely conclude that it does. It is worth considering both the coming decision, and also how Christians might think about it and respond to it. And we ought to think through these questions now, rather than in the midst of the media (particularly social media) frenzy that is sure to follow the decision.
The heated rhetoric over Indiana’s religious freedom law is a preview of what is to come. It’s worth revisiting some of the Indiana rhetoric, to illustrate both the charged nature of the debates and the complexity of the underlying legal issues. Apple CEO Tim Cook called the law a “very dangerous” effort to “enshrine discrimination” and “rationalize injustice.” Kareem Abdul Jabar suggested that it was “a step toward establishing an American version of Shari‛ah law,” and journalist Ben Kepes worried that the Indiana law “feels very much like a prelude to another Kristallnacht.”
Other commentary simply got the facts wrong. Conflicts over religious liberty often involve contested normative views, but there are still some facts. For example, it is incorrect to claim that the Indiana law allowed commercial businesses to discriminate. The text of the statute heightens protections for substantially burdened religious practices, and its original coverage extended to commercial businesses. That would have given florists, cake bakers, and pizza joints that did not want to provide services at a same-sex wedding the ability to raise a religious liberty defense if confronted with an antidiscrimination lawsuit. They may or may not have prevailed—similarly situated businesses have always lost previous cases of this kind. The hypothetical parade of horribles—the restaurant or the real-life auto repair shop that would turn away gay customers outside of a wedding context—would have faced an even higher burden in light of existing case law. No such commercial business has ever prevailed on a statutory or constitutional religion freedom claim of that kind.
But those who supported the Indiana law weren’t free from hyperbole and false claims. Just as it is incorrect to claim that the Indiana law would have allowed discrimination, it’s also wrong to suggest that the law had nothing to do with potential conflicts involving LGBTQ discrimination by commercial business, or that it was identical to other religious freedom laws. In fact, multiple supporters of the law expressly hoped that it would protect commercial business owners like florists and cake bakers from having to provide services at same-sex weddings. We can debate the merits of those protections, but it is false to suggest that supporters of the Indiana law did not contemplate them.
Irresponsible rhetoric from the Left distorted the significance of the Indiana law. But anxious musings from the Right suggested that the law’s defeat meant the end of democracy. Conservative radio host Mark Levin contended that opponents of the bill “hate America.” Family Research Council President Tony Perkins argued that revising the Indiana law to exclude commercial businesses from its coverage “would gut religious freedom in Indiana.” These kinds of claims were unhelpful and irresponsible.
Learning from Laycock
We might learn from the recent Indiana debate and think carefully about how we can avoid hyperbolic and false claims, even if others choose to make them. We might consider how we can be more attentive to the complexities of politics, culture, and law that will play out in the marriage decision.
One useful resource is a brief filed in the marriage cases now before the Supreme Court. The brief’s senior author, Douglas Laycock, is one of the leading scholars and litigators in the area of religious liberty. Laycock successfully argued the recent ministerial exception (Hosanna-Tabor) and prison beards (Holt v. Hobbs) cases decided by the Court. And he strongly supported the Indiana religious freedom bill, both in its enactment and in the midst of the public debate that followed.
The Laycock Brief makes two principal arguments: (1) The Supreme Court should require states to recognize same-sex marriage; and (2) In doing so, the Court should craft its ruling to guide lower courts and policymakers in protecting religious liberty against the challenges that will surely follow. The brief is an equal opportunity offender—hardly anyone will like all of it. But it makes some important observations that can inform our reflections. To that end, I hope you will even consider reading the brief. (Fair warning: this is a legal document, and it’s not exactly pithy.)
Four passages from the brief are particularly important for Christians to understand, even if they disagree with some of the arguments being made. I’ll offer a few thoughts of my own after each quote.
1. “The choice of whom to marry is one of the most intimate and personal decisions that any human being can make. Government should not interfere with that choice without a very important reason.”
Regardless of one’s view about the constitutional question before the Court, it is a mistake to disregard or belittle the interests of gays and lesbians who seek to be married. It is not helpful to argue that gays and lesbians don’t really want marriage, or that Hollywood’s gloss on same-sex relationships masks deep problems in real-life same-sex relationships. Some gays and lesbians don’t want monogamous marriage, but plenty of gays and lesbians do. And Hollywood’s misimpressions are not limited to same-sex couples: the entertainment world has 50 shades of distorting human relationships and notions of sexuality. Meanwhile, real couples—gay and straight—work through the challenges of real relationships, with varying degrees of success.
2. “Sex and sexual morality are central to religious marriage, but increasingly peripheral to legal provisions for civil marriage. Consensual sex has been deregulated, both in and out of marriage. Adultery and fornication are no longer crimes. It is possible, and of course extremely common, to have sex without marriage. And it is entirely possible, although presumably rare, to have a fully valid legal marriage without sex. Understandings about sex in a civil marriage are left to the married couple, and appropriately so. There is very little about sex among the hundreds of things defined by law as part of civil marriage.”
One reason legal arguments against same-sex marriage fall short is that it has been a long time since civil marriage has primarily been about the goods of Christian marriage. That doesn’t mean that Christians should give up on the importance of these goods. But it does suggest that same-sex marriage is symptomatic of, rather than the cause of, a vast gulf between Christian marriage and civil marriage in the United States.
The Laycock Brief emphasizes civil marriage. In doing so, it echoes a growing chorus of arguments that Christians should focus less on the government’s take on marriage and more on how marriage is honored and cultivated within Christian communities. Theologian Stanley Hauerwas raised this challenge long before same-sex civil marriage had become a legal possibility. In a 1978 essay, he insisted that “how we order and form our lives sexually cannot be separated from the necessity of the church to chart an alternative to our culture’s dominant assumptions.”
Hauerwas also recognized that the church’s commitment to marriage must exist alongside its commitment to singleness: “both singleness and marriage are necessary symbolic institutions for the constitution of the church’s life as the historic institution that witnesses to God’s Kingdom.” We could choose to view the current cultural moment as an opportunity to focus more intently on our own shortcomings in honoring both marriage and singleness in the church.
3. “Serious issues of religious liberty will arise in the wake of same-sex marriage. But it is not appropriate to prohibit same-sex civil marriage to avoid having to address those issues. No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own. And there is no burden on religious exercise when the state recognizes someone else’s civil marriage.”
If the Supreme Court establishes a constitutional right to same-sex marriage, challenges to religious freedom will increase. As I’ve noted earlier for CT, only traditionalist believers will impose membership or leadership restrictions based on sexual conduct or distinctions between opposite-sex and same-sex marriage. Gender-based distinctions will persist in lots of nonreligious contexts: fraternities and sororities, single-sex private high schools, sports teams, fitness clubs, and strip clubs. But there will be no secular analogue to religious distinctions between opposite-sex and same-sex marriage.
These developments will lead to more legal and cultural challenges for traditionalist believers. But the Laycock Brief is correct to note that the coming challenges are an insufficient reason for opposing somebody else’s liberty claim. And Laycock is right: Constitutionalizing same-sex civil marriage does not by itself burden anyone’s religious exercise.
4. “Both same-sex couples and religious dissenters face the problem that what they experience as among the highest virtues is condemned by others as a grave evil. Where same-sex couples see loving commitments of mutual care and support, many religious believers see disordered conduct that violates natural law and scriptural command. And where those religious believers see obedience to a loving God who undoubtedly knows best when he lays down rules for human conduct, many supporters of gay rights see intolerance, bigotry, and hate. Because gays and lesbians and religious conservatives are each viewed as evil by a substantial portion of the population, each is subject to substantial risks of intolerant and unjustifiably burdensome regulation.”
This observation again raises the importance of pluralism in our time. We ought to recognize the fact of genuine difference, including profound moral disagreement. And we should recognize that protecting the practices that we hold dear will also mean tolerating the practices that offend us.
This is no easy task. As the philosopher Bernard Williams has observed, tolerance is most needed when people find others’ beliefs or practices “deeply unacceptable” or “blasphemously, disastrously, obscenely wrong.” The basic difficulty of tolerance, Williams noted, is that we need it “only for the intolerable.” But there is a way to be tolerant without by default embracing all beliefs and viewpoints as good or right. This pluralism is not relativism. It is not an “anything goes,” happy-go-lucky tolerance. Rather, it’s a practical enduring for the sake of coexistence. And that kind of tolerance is built into our constitutional framework. It is why we have protections like free speech, free assembly, and the free exercise of religion.
The Coming Challenges
In a few months, the Supreme Court will likely conclude that same-sex civil marriage is a constitutional right. That will mean increased liberty for gays and lesbians who wish to marry; it will also lead to increased pressures on religious organizations and individuals who believe that marriage is fundamentally between a man and a woman. We will see more challenges to the florists, the bakers, and the pizza-crust makers.
We will also see more challenges to religious student groups, religious universities, and religious social-service organizations. Christians and other believers with traditional views on marriage should be concerned about the coming challenges. And they should work to ensure meaningful legal protections for the ability of religious organizations to live and act according to their religious purposes.
But it would be a mistake to let our concern over these challenges lead to resentment or unkind words toward our neighbors, gay or straight, who will celebrate the Court’s marriage ruling. Legal and political battles—as important as they are—have real-world consequences not only for us but also for our friends and neighbors. It would be a mistake to forget that our words and actions continue to matter regardless of the legal and cultural environment.
There will be times to stand in defense of Christian witness. But let’s not mistake a greater awareness of the pluralism that actually exists in our society as the immediate threat. We might see it instead as an opportunity—an opportunity to offer a more credible witness to the world as we find it. As Hauerwas reminds us, “the church does not exist to provide an ethos for democracy or any other form of social organization, but stands as a political alternative to every nation, witnessing to the kinds of social life possible for those that have been formed by the story of Christ.” Those forms of social life play out in how we honor marriage and singleness within the church, and how we show love of neighbor to those outside of the church. The coming months and years will give us plenty of opportunity for both.
John Inazu is associate professor of law and political science at Washington University in St. Louis and a visiting fellow at the Institute for Advanced Studies in Culture at the University of Virginia, where he is writing a book on confident pluralism.