The Shadow of Equality Looms

In the Chicago Tribune, Pepperdine Law Professor Douglas Kmiec warns that allowing gay marriage will eventually expand into forcing churches to perform them, under pain of legal sanction. He provides two supporting examples: the backlash against the Boy Scouts, and the marginalization of racists in American society:

With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.

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.

Now, whenever I hear this "we'll be treated just like racists!" argument, my first inclination is that the complaining party might reflect as to why the comparison to racism is so easy to make. I think a little humility in the face of that accusation may be in order. But let that slide for now. There are some points to be had here, but even if Kmiec's worst-case scenario occurs (and I doubt it will), he's overstating his case.

Commenting on Kmiec's article, Dominico Bettinelli claims that this is about legally mandating that churches perform gay marriage. But while it's clear that this is the impression Kmiec wants to give, his argument doesn't actually show that (for good reason, there is no way that would pass free exercise muster). What it does show is that there is some risk that Churches which don't perform gay marriages will lose their tax-exempt status. That's definitely coercive (although no more so than what anti-gay advocates celebrated in the FAIR v. Rumsfeld decision), but it's not the same as compulsory.

But I'll agree that losing tax-exempt status is not exactly a neutral pose, so what about it? Well, first of all, contrary to what Bettinelli says, it is virtually impossible to imagine that it would be a judge who made this decision, as tax decisions are nearly always kept to the legislature. Even Kmiec concedes that it would take a State Attorney General to issue an opinion leading to a revocation of tax-exempt status. Gay equality advocates have enough trouble securing their own rights in the democratic forum, what are the odds that they'll be able to attack others with any success? Incidentally, I want to pre-empt a response to this that is sure to piss me off: saying that judges will do it because judges don't care about the law. I think that the really sloppy legal analysis by Bettinelli (not Kmiec) comes out of a misguided belief that law does not matter to (liberal) judges, so they'll just do whatever their (evil) hearts desire. This just isn't true. To be sure, liberal judges have different interpretive techniques, ones that conservatives find to be illegitimate. But they are still constrained and are not free to do whatever they want. Duncan Kennedy, perhaps the most prominent member of the Critical Legal Studies movement (and thus far less likely to feel constrained by conventional legal restrictions that probably any judge on the federal bench) still ticks off several factors that would prevent him from just doing whatever he likes on the bench:

First, I see myself as having promised some diffuse public that I will "decide according to law," and it is clear to me that a minimum meaning of this pledge is that I won't do things for which I don't have a good legal argument....

Second, various people in my community will sanction me severely if I do not offer a good legal argument for my action....

Third, I want my position to stick....

Fourth, by engaging in legal argument I can shape the outcomes of future cases and influence popular consciousness about what kinds of action are legitimate....

Fifth, every case is part of my life-project of being a liberal activist judge. What I do in this case will affect my ability to do things in other cases, enhancing or diminishing my legal and political credibility as well as my technical reputation with the various constituencies that will notice....

Sixth, since I see legal argument as a branch of ethical argument, I would like to know for my own purposes how my position looks translated into this particular ethical medium. [Duncan Kennedy, Imagining a Judge's Reasoning Process, in ANALYTIC JURISPRUDENCE ANTHOLOGY 208-209 (Anthony D'Amato ed., 1996)]

To reiterate, there is not a single judge on the federal bench that would take even this radical a view. Most others feel bound to some extent by precedent, by prevailing legal norms, by constitutional traditions, and by a commitment to protecting rights (which in this case includes the right of religious majorities to practice their belief system as it sees fit).

But I digress. Okay, let's assume that a state attorney general or legislature does pass such a restriction. What then? Well, I probably would not vote for such a law. And as a judge, I'd probably strike it down as unconstitutionally impinging on the free exercise clause. But since I am neither a legislator nor a judge, that isn't a huge barrier to hurdle. What would the upshot of such a law be? It would merely hold that organizations who discriminate against free and equal members of the polity can not lay claim to the succor of a state committed to the equal status of its citizenry. I really have a hard time getting riled up about that. Bettinelli complains that:

As we have seen it is not enough, according to liberal activists, to have an absence of active persecution or oppression. Anything less than full-fledged love and admiration for their particular lifestyle choice will be seen as hate-speech, racism, or whatever other disparagement can be thrown our way. What they want is approval and acceptance.

Okay, so what? Not giving acceptance to homosexuality is not racism, but it is homophobia, and hateful toward homosexual[s/ity]. There really is not any dodging that, and the fact that Bettinelli feels compelled to try means he's already lost his argument. Blacks shouldn't have to settle for not being actively persecuted, they have the right to demand full and equal acceptance in the American community. When this is denied (even in the absence of legal barriers), we rightfully call it racism. There is no reason this shouldn't be true of homosexuality. And if the Christian right wishes to hitch itself to that train, then it is going to have to admit forthrightly that it is discriminating, that in that respect it is breaching one of America's core values, and that it feels sufficiently strong about this commitment that it is willing to accept the consequences.

Ultimately, the argument being presented here is one that likely never will come into being, would probably not survive court muster even if it did, and would not be particularly onerous even if it survived. Spare me the apocalyptic rhetoric, please.

Ultimate Heads Up: Southern Appeal.