Themes of 2015: Religion, Morality, and the Law

All year, gay rights has had to compete with claims of “religious freedom”. I should have predicted that: If you look back in American history, bigotry has always hidden behind religion.


As 2015 began, same-sex marriage was clearly headed to the Supreme Court. The ruling in Obergefell v Hodges wouldn’t come until June, but both sides were making their final push to bend public opinion in their favor. So in February, I wrote “When Hate Stays in the Closet” to answer what seemed to me to be the two most reasonable-sounding arguments against same-sex marriage. (A consistent gripe I have about the national debate is that all sides tend to focus on the most hateful and unreasonable arguments made against them, and leave the more reasonable ones untouched.)

On April 6, “Religious Freedom: Colorado’s sensible middle way” explained the principles involved in the various cases involving bakers, photographers, and other folks who felt their religious convictions should allow them to not serve gay couples who were planning their weddings. The key principle, which was already embedded in First Amendment cases and didn’t need any new religious-freedom laws to enforce it, was:

a business open to the public should be (and I believe is, without any new religious-freedom laws) free to refuse to endorse an idea, but it should not be free to refuse service to people merely because they practice or promote that idea.

So if a baker refuses to put “Gay Marriage Rocks” on a cake, that’s his First Amendment right. But if the shop sells wedding cakes to the public, it isn’t free to refuse a wedding cake to a same-sex couple.

I continued on the religious-freedom theme in May with “Turning the Theocracy Against Itself“, making the point that the new religious-freedom laws were clearly intended only for conservative Christians, and predicting that

If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

For example: Inscribing “In God We Trust” on the money forces atheists either to do without the convenience of a national currency, or to hand out pieces of paper that denounce their own religious views. How can any non-sectarian religious-freedom law not ban that?

In May, I gave my best explanation of why I think bans on same-sex marriage are unconstitutional, even though the people who ratified the 14th Amendment probably never envisioned protecting same-sex couples.

In current law, the [legal] roles of husband and wife are virtually interchangeable. … So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

Also in May/June, the Josh Duggar molestation scandal broke. For reasons I can’t recall, I resisted devoting an article to it, but a segment of a weekly summary was of article length and scope, concluding:

Morality, as I conceive it, is about how we’re all going to live together on the Earth without making each other miserable. If you picture it instead as a private interaction between yourself and the Divine Lawmaker, I think you’ve still got some growing up to do.

In early June, the Bruce/Caitlin Jenner story suddenly put transgender issues in the headlines. I had never thought about the topic seriously before (and it showed; ever since, commenters have been educating me about how not to inadvertently give offense). But rather than mask my own squeamishness, I decided to explore it to see what insight it could give me into the people who saw the celebration of Jenner as a “snapshot of just how corrupt, how morally corrupt, how morally bent, how morally twisted, how morally confused, how morally bankrupt we have become”. In “What’s So Scary About Caitlyn Jenner?” I announced an abstract principle that I should probably break out into its own article sometime: Everything you thought was a category is actually a continuum.

I think the unifying principle of social conservatism is the desire to believe that the categories in our heads — male/female, black/white, good/evil, friend/enemy, and so on — correspond to real and solid divisions in the external world. Social conservatives increasingly retreat into an information bubble as it becomes more and more obvious that what they want to believe simply is not true. Binary categories are just kludges evolution has provided to help us simplify a world too complex for our brains to fully grasp.

When the Obergefell decision arrived in June and same-sex marriage became legal nationwide, I was pleased by the result but (once again) disappointed in Justice Kennedy’s reasoning.

Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.  Not in other marriage cases – that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

By founding his decision on a vague “right to marry” that he scries out of the word liberty in the 14th Amendment, Kennedy fed conservative rhetoric about “redefining marriage” and “judicial activism”. In the long run, I believe the reasoning that will stand is the equal-protection argument above, which I learned by reading the lower-court decisions.

After Obergefell, opponents of same-sex marriage largely went into denial, claiming that the other branches of government (or some popular uprising) could still stop this abomination (which has been happening in Massachusetts for more than a decade with no visible ill effects).

The opponents hate to be called bigots, and argue that their opposition is based on religion, not hatred. So it’s completely different than say, the opposition to interracial marriage in the 1960s. In order to make that argument, you have to be completely ignorant of history, so I tried to fix that with a history lesson in “You Don’t Have to Hate Anybody to be a Bigot” (the year’s most popular new post). After reviewing the religious arguments that have justified segregation and slavery, I concluded:

There’s nothing new about nice, salt-of-the-Earth people who sincerely believe that certain other people are undeserving of empathy or respect or fair treatment. There’s nothing new about those beliefs being expressed and justified in religious terms, or put forward by ministers and theologians.

Quite the opposite, that’s the normal situation.

In other words, it is totally typical for Americans to hide their disregard for their neighbor behind their love of God. Today’s Mike Huckabees and Kim Davises are heirs to a long tradition of religiously justified bigotry, even if they would rather not claim that legacy.

In his Obergefell dissent, Chief Justice Roberts raised the specter of polygamy as the next step down the slippery slope. In July, I examined that possibility, finding that (A) it’s not nearly so simple a step as Roberts implied, and (B) it’s also not the horror that he imagined.

By September, we had the Kim Davis saga, which I covered in “Is Kim Davis a Martyr?” I describe the standard of purity Davis  and others want to apply here — that Christians shouldn’t involve themselves in other people’s sins in any way — as “a ‘sincerely held belief’ that was invented solely for this purpose.” I see no reason to take it seriously.

As the year ends, the push to define religious freedom broadly — for conservative Christians, if no one else — continues, accompanied by the self-justifying fantasy that American Christians are persecuted. We’ll undoubtedly see more states pass laws that legalize discrimination against gays, and since the male-Catholic-conservative majority on the Supreme Court (Roberts, Scalia, Thomas, Alito, Kennedy) shows no signs of grasping the problem yet, it wouldn’t surprise me if they extend the religious-freedom principles in the Hobby Lobby decision even further in 2016.

I don’t see this trend stopping until unpopular religious groups start claiming their equal rights under these laws and interpretations, and forcing conservative judges to explain why they don’t deserve the same consideration Christians get. When those laws start protecting the broadly defined religious freedom of Muslims and pagans and atheists, conservative Christians will lead the repeal effort themselves.

Post a comment or leave a trackback: Trackback URL.

Comments

  • John Spangler  On December 28, 2015 at 9:08 am

    Here in Michigan we’ve seen the continuing battle caused by Justice Kennedy’s flaky writing, with no legal protections in state law for LGBT persons. There was an effort made but with a captive Republican legislature, it won’t be happening by those means, so now there is an effort to amend the state constitution. Yet oddly enough, and about one news item you don’t mention in the article, is how the municipal defeat in Houston seems to have discouraged many professional advocates for LGBT rights, stalling the momentum caused by Obergefell v. Hodges. There is a great fear of backlash from the religious right, even though here in Michigan it has a much smaller political presence than in Texas, and I think that can be put to how religious “freedom” has overshadowed the national conversation.

  • Jeff Rosenberg  On December 28, 2015 at 12:45 pm

    I wonder if there is one overarching theme — “threats to the status quo.” Be it political candidates (I’d even argue Bernie Sanders more than Donald Trump), police (mis)behavior, same-sex marriage, transgender, Cuba/Iran relations…there seems to be an increasing dissatisfaction with ‘business/norms as usual’ along with a defensive clinging to ‘tradition’ perhaps best illustrated by scores of symbolic resolutions to repeal the Affordable Care Act (Obamacare) with immigration xenophobia a close second.

  • Jane  On December 30, 2015 at 2:35 pm

    I’ve always thought that the States have it wrong. What the state is interested in and has jurisdiction over is domestic partnerships-the agreement between people to pool incomes, own property jointly, the welfare of minors existing in the care of the adult members of the partnership and the state could enact laws that define the domestic partnership,the taxation laws, and the dissaloution of the property. Why not make marriage the religious only ceremony and reserve all the rights to a legally binding partnership? I.e. If you marry in a religious ceremony and don’t also have established the domestic partnership,you have no rights- you pay taxes as singles,buy insurance as singles,buy property as singles,children have no rights of inheritance , no rights of next of kin,- all part of the domestic property legislation. People you chose to marry in a religious belief system and follow those rules could do so .

  • Dan Cusher  On December 31, 2015 at 8:27 am

    I completely agree with your analysis that this BS “religious freedom” – or more accurately “my right to impose my religious beliefs on other people” – will continue to expand until some hated minority tries to use it. This has been the case across the country whenever Christians try to set up special treatment for themselves from the government. The Ten Commandments monuments they put up on public property come down VERY quickly when The Satanic Temple applies to put up their monument of choice. Likewise, public schools quickly ban churches from handing out bibles to students once The Satanic Temple asks to hand out their Satanic Coloring Book. This has worked so perfectly and consistently that the idea has been named Lucien’s Law after the leader of The Satanic Temple, Lucien Greaves.

Trackbacks

  • By The Yearly Sift: 2015 | The Weekly Sift on December 28, 2015 at 10:11 am

    […] themes stand out. I’ve pulled three out into their own articles: the presidential race; the religion/morality/law complex that resulted from the Supreme Court’s same-sex marriage decision and continued in the […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: