The Coming Societal Trainwreck

A societal trainwreck is coming. Soon. On one train is our First Amendment rights of freedom of speech, assembly, and religion. On the other is gay marriage.

Already, there has been a casualty---Catholic Charities of Boston.

"Catholic Charities of Boston, one of the nation's oldest adoption agencies, had long specialized in finding good homes for hard to place kids," says Maggie Gallagher, author of "The Coming Conflict between Same-sex Marriage and Religious Liberty". However, Catholic Charities in Boston is now out of the adoption business.

Why? Massachusetts's court mandated gay-marriage.

[I]n November 2003, the Massachusetts Supreme Judicial Court ordered gay marriage. The majority ruled that only animus against gay people could explain why anyone would want to treat opposite-sex and same-sex couples differently.

To operate in Massachusetts, an adoption agency must be licensed by the state. And to get a license, an agency must pledge to obey state laws barring discrimination--including the decade-old ban on orientation discrimination. With the legalization of gay marriage in the state, discrimination against same-sex couples would be outlawed, too...Ron Madnick, president of the Massachusetts chapter of Americans United for Separation of Church and State, [claimed]: "Even if Catholic Charities ceased receiving tax support and gave up its role as a state contractor, it still could not refuse to place children with same-sex couples."

[T]he Becket Fund [a religious liberty law firm which defends any faith group] brought together ten religious liberty scholars of right and left to look at the question of the impact of gay marriage on the freedom of religion. Picarello [of Becket Fund for Religious Liberty] summarizes: "All the scholars we got together see a problem; they all see a conflict coming. They differ on how it should be resolved and who should win, but they all see a conflict coming."

These are not necessarily scholars who oppose gay marriage...the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage.

Of course in principle, people's right to free speech, our most cherished liberty, will not be infringed upon. At least, that's the theory. In reality,

People who favor gay rights face no penalty for speaking their views, but can inflict a risk of litigation, investigation, and formal and informal career penalties on others whose views they dislike. Meanwhile, people who think gay marriage is wrong cannot know for sure where the line is now or where it will be redrawn in the near future. "Soft" coercion produces no martyrs to disturb anyone's conscience, yet it is highly effective in chilling the speech of ordinary people.

The churches themselves might have a First Amendment defense if a state government or state courts tried to withdraw their exemption, ... but "the
para-church institutions are very much at risk and may be put out of business because of the licensing issues, or for these other reasons--it's very unclear. None of us nonprofits can function without [state] tax exemption. As a practical matter, any large charity needs that real estate tax exemption."

There are already examples of this kind of church-state conflict from recent history.

[Robin] Wilson predicts "a concerted effort to take same-sex marriage from a negative right to be free of state interference to a positive entitlement to assistance by others. Although Roe and Griswold established only the right to noninterference by the state in a woman's abortion and contraceptive decisions, family planning advocates have worked strenuously to force individual institutions to provide controversial services, and to force individual health care providers to participate in them."

"This litigation after Roe," she says, "provides a convincing prediction about the trajectory that litigation after Goodridge will take" (Goodridge being the Massachusetts supreme court decision that legalized gay marriage). The post-Roe litigation also provides fair warning about the limits of First Amendment protection. The lever used to force hospitals and doctors to perform abortions and sterilizations was the receipt of any public money. "Given the status of most churches as state
nonprofits and federally tax-exempt organizations, it is likely that public support arguments will be advanced to compel churches to participate in same-sex marriage. Thus, churches in Massachusetts (and perhaps soon other states) may have much to worry about," Wilson writes. "Churches that oppose same-sex marriage today may perceive a credible, palpable threat to their tax-exempt status, the benefits of which are substantial."

Access the complete story here.

Personally, I don't care much what people do in their private lives. Big people can make big people decisions. I have no desire to regulate whether people smoke their lungs out, drink their livers into cirrhosis, smash their heads because they failed to where a seatbelt in their cars or a helmet on a motorcycle, or whatever. I have no interest in going into people's bedrooms to regulate their behavior there either.

However, society as a whole will lose out if religious people and groups lose their churches and organizations because of this growing conflict. Religious schools could be forced to close down if they choose not to bow to the government. Many parents, both religious and non-religious, have depended on religious schools to educate their young. They would lose out. What about religious camps, retreats, shelters, and community centers? Any facility that courts deem a place of public accommodation could be in danger of lawsuit and might be forced to close. The public will again be the big losers in such cases. The para-church organizations are among the first to arrive in disaster hit areas such as in Louisiana after Katrina. Many of these organizations may no longer exist once demands by the state are made upon them. Even casual speech in the workplace could be stifled as corporate lawyers seek to suppress simple self-expression for fear of lawsuits.

In a world in which a simple Quaker librarian from Ohio State can be accused of sexual harassment for suggesting conservative books like, "It Takes a Family" for a freshman reading list, the chill could affect everyone.

As we argue over where our culture should go and what our rights actually are, let's be careful not to damage the most valuable rights we have. The first amendment is first for a reason. The people who founded this nation knew that before all else the free exercise of American's religious beliefs, their freedom of speech, and their right to peaceably assemble was tantamount to true liberty. These are crucial rights to preserve.