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Activists say gay-marriage wouldn’t hurt anyone. Are they right? June 14, 2006

Posted by papundit in Uncategorized.
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Gay-marriage proponents have successfully framed the debate over gay marriage as one of acceptance and civil rights. Opponents of gay marriage are portrayed in the media as intolerant or even as political opportunists. Even private citizens can face severe backlash for supporting candidates who favor a gay-marriage ban. In Philadelphia, the owner of the 12th Street Gym had to sell his interest in the business after gay activists targeted him for donating money to Rick Santorum’s campaign.

Senator Santorum is particularly demonized by gay-marriage activists, who have launched an aggressive internet campaign to define his last name as a dirty word. Conservatives need to do a better job articulating why they oppose gay marriage if they don’t want the media and activists to do it for them. Although the Senate rejected a proposed amendment to the Constitution that would have defined marriage as strictly between a man and a woman, 49 senators voted in favor of the amendment last week— including Rick Santorum. Senator Santorum, as quoted in a local newspaper, said that “religious liberty… is under incredible assault as a result of these court decisions on the issue of marriage.”

Many Republicans I know cringe when they read quotes like that from Senator Santorum and other social conservatives because they know how the media will spin them. According to a recent ABC poll, 58% of Americans believe gay marriage should be illegal. I do not believe that means that 58% of Americans hate gay people even though the media may choose to portray the issue as one of intolerance.

Political analysts frequently observe that many Northeastern Republicans aren’t passionate advocates of the gay marriage ban, but I think they misdiagnose the reasons why. For example, an article on the Philadelphia Inquirer’s blog declared that the gay-marriage amendment failed despite the poll numbers because “The Northeastern brand of Republican does not share the religious right’s passion for using the federal government to regulate morality.”

It’s unfair to describe the amendment as an attempt to regulate morality. According to a recent ABC poll quoted by The Philadelphia Inquirer, “42 percent believe that the Constitution should be amended to ban” gay marriage. I don’t think that 42% of the public wants the government regulating morality— rather they do not want judicial activists deciding the issue and imposing their version of morality on the people.

I’ll confess that discussions about gay marriage bans have always made me uneasy. Articles about the struggles of gay couples generate sympathy, and I’m not unmoved by them on an emotional level. Some dear friends of mine are gay, and I try my best to treat them as I would want to be treated— with kindness. I accept them and do not criticize their beliefs, and I ask that they accept me and refrain from criticizing my Catholic religion or my political beliefs. (There were some heated arguments about the 2004 elections, but this arrangement works most of the time.) So it came as a surprise to them that I object to efforts by judicial activists to legalize gay marriage. After all, they didn’t think I was “one of those bigots.”

The most frequent comment I hear on the gay marriage issue is that gay marriage doesn’t hurt anyone. I don’t want to get involved in a debate on whether gay marriage hurts anyone, but I do believe that gay marriage imposed by the judiciary could impact religious liberty in the U.S. and hurt churches.

If this sounds odd to you, please read this article by Douglas Kmiec in the Chicago Tribune- “If Gays Marry, Churches Could Suffer.” Kmiec, a professor of Constitutional law, believes that a consequence of judicial approval of same-sex marriage “will be a push to demonize–and then punish–faith communities that refuse to bless homosexual unions.” He explains how churches “can be made the collateral casualties of the same-sex marriage campaign” (my bolds inline):

While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.

For technical legal reasons, it is difficult to challenge a religious group’s non-profit status in federal court, but state court is more open. There, judicial decisions approving same-sex marriage or even state laws barring discrimination can be used to pronounce any opposing moral or religious doctrine to be “contrary to public policy.” So declared, it would be short work for a state attorney general’s opinion to deny the tax-exempt status of charities and most orthodox Jewish, Christian and Islamic religious bodies. If enough state lawyers do this, expect the IRS to chime in.

Punishing religious organizations for their moral beliefs might be thought contrary to the protections of the Constitution. Unfortunately, the Boy Scouts have had little success defending these bedrock precepts. Penalizing the Scouts for observing their own handbook, say lower courts, merely avoids the immediate harm of discrimination, even as the bald-faced assertion that moral belief is a “harm” is anomalous.

That churches can be made the collateral casualties of the same-sex marriage campaign is important to grasp. At a minimum it gives partial answer to the view of indifference that asks how gay marriage hurts anyone. When judges treat your religious community, its schools and its charities on par with the purveyors of racial hatred, it will no longer be necessary to ask. But then, it will also be too late.

This is an issue that must be decided by the people and by the states. 45 states currently ban gay marriage, and I fear that imposing gay marriage on an unready public via the judiciary is a mistake we’d regret for years to come. The judicial activism in the Roe vs. Wade case caused a great deal of harm. If the Roe vs. Wade decision had been left up to state legislatures, abortion would not have become such a polarizing issue.

Pro-choice activists fight to protect a disgusting procedure like Partial Birth Abortion because they fear banning it would be a slippery slope that threatens Roe vs. Wade. For the same reasons, these activists fight to protect the right to have late-term abortions even though premature infants born after the sixth month can frequently survive outside of the womb with medical intervention. These excesses are particularly appalling. If the abortion issue had been left to the states, I believe the state legislatures would have shown enough common sense to ban partial birth and late-term abortions except when absolutely necessary to save the mother’s life.

Legislatures are better at building consensus and identifying compromises than the judiciary. If a decision on gay marriage were left up to state legislatures, it would reduce the risk that possible legalization of gay marriages could be used to attack churches as well as the risk that legalization would cause a backlash against same-sex couples. I trust the American people far more than I trust a small group of activist judges who think they know better than us.

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Comments»

1. Gay Marriage and Religious Liberty « Rett Hatcher & Company - June 5, 2008

[…] 5, 2008 by Rett Hatcher Excellent insight from Douglas Kmiec, a professor in Constitutional Law, about the advance of gay rights… “While it may be […]


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