I know that I should say something about the backlash and debate over Indiana’s version of the Religious Freedom Restoration Act, but it’s been hard to come up with something that I didn’t already say in my column when it was Arizona’s variation on the same law, vetoed under pressure, that was in the news. That column made the case that the only remaining question in the same-sex marriage “debate” was what kind of space, if any, an ascendant cultural liberalism would leave to Americans with traditional views on what constitutes a marriage; that the correlation of forces (corporate now as well as cultural and legal) was such that the choice of exactly how far to push and how much pluralism to permit would be almost entirely in the hands of liberals and supporters of same-sex marriage. That’s still basically how it looks to me today: Elements of the Indiana debate have been particularly … striking, but none of it has been particularly surprising given how this played out in Arizona.
But it occurs to me one thing that might be helpful for everyone involved in these arguments is to look ahead and try to clarify, even a little bit, exactly how the landscape of debate is likely to evolve. One of the difficulties in this discussion, from a conservative perspective, is that the definition of “common sense” and “compromise” on these issues has shifted so rapidly in such a short time: Positions taken by, say, the president of the United States and most Democratic politicians a few short years ago are now deemed the purest atavism, the definition of bigotry gets more and more elastic, and developments that social liberals would have described as right-wing scare stories in 2002 or so are now treated as just the most natural extensions of basic American principles. (Rod Dreher calls this the “law of merited impossibility,” in which various follow-on effects of same-sex marriage are dismissed as impossible until they happen, at which point it’s explained that of course they were absolutely necessary.) Of course all of this is happening because underlying attitudes have changed rapidly, and what’s politically and socially possible is changing with them; that’s all understandable. But the pace involved is unusual, and its rapidity makes it very easy to imagine that scenarios that aren’t officially on the table right now will become plausible very, very soon.
Let’s just take the issue at stake in the Indiana/religious liberty debate. Beneath all of the to-and-fro-ing over what the law actually says, whether it differs from other statutes like it, and so on, lies a basic reality that both sides can concede. The support for new state RFRAs from religious conservative has been occasioned by a handful of cases in which people in the wedding industry (photographers, florists, etc.) have been sued or fined or otherwise sanctioned for trying to decline to provide their services for a same-sex ceremony. The current conservative position (though one that the Republican Party’s business wing is eager to abjure) is that a religious exemption of some sort is a reasonable compromise between gay rights and freedom of religion/freedom of association; the current liberal position (with a few exceptions) is that granting private businesses the right to decline involvement in same-sex nuptials is the moral and legal equivalent of allowing businesses to turn away African-Americans from lunch counters.
As I’ve said before, I don’t think the issues in the wedding industry deserve the label “persecution” that some religious conservatives have slapped on them, and I don’t think the view taken by these florists/bakers/photographers is necessarily mandated by orthodox Christian belief. But it is my very strong impression that if a religious conservative (or anyone on the right) had said, back in 2004 or even into President Obama’s first term, that they accepted that marriage should be redefined nationwide to include same-sex couples, that they further accepted that this would happen swiftly through the courts rather than state-by-state and legislatively, and that all they asked of liberals was that this redefinition proceed in a way that allowed people like Barronelle Stutzman some wiggle room about whether their businesses or facilities had to be involved in the wedding ceremonies themselves — with the mechanism for opting out being something like the (then-still-bipartisan) RFRA model – this would have been treated as a very reasonable compromise proposal by a lot of people on the center-left, gay as well as straight. I cannot prove this absolutely, and I concede that there are lots of people on the left who wouldn’t have liked the deal. But the world of liberal opinion is a pretty familiar one to me, the world of the past isn’t that far past, and I think my assessment is basically correct.
Today, though, as I said above, I think the consensus center-left position has basically shifted toward the argument offered by Garrett Epps for The Atlantic: It doesn’t matter if Stutzman or any other wedding vendor is a nice person with sincere religious beliefs, and it doesn’t matter if she or they would provide her services to gay clients in any other context; her religious anxiety about decorating a wedding chapel for a same-sex couple is no different from the objection to integration of a Southern store-owner whose preacher taught him the races should be separate, and needs to be dismissed with extreme prejudice lest anti-gay discrimination flourish and spread.
And whether you find this view, this analogy, persuasive or you don’t, it has a lot of possible further implications. Because in the annals of American history, both Jim Crow and the means we used to destroy it are, well, legally and culturally extraordinary. So if our current situation with same-sex marriage and religious conservatives really is analogous, there is no obvious reason why we’ve reached any kind stopping point once the florists and bakers have been appropriately fined or closed down.
Hence the following seven questions about future steps, which I’ll pose specifically to Epps and generally to the Indiana law’s many liberal critics. Some are rooted in real-life examples and possibilities; some are much more (I think) unlikely. But I’m still quite interested in whether people would support them if they were to become plausible options a little ways down the road.
1) Should religious colleges whose rules or honor codes orcovenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?
2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?
3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?
4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?
5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?
6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?
7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?
No doubt others could add more questions to the list, but that seems like decent range to me. Again, I’m genuinely interested in the answers, and not just for the sake of putting people on the record or playing some kind of “follow the logic” game. At the very least, I think liberals would benefit from recognizing that the current thinking of religious conservatives, in the RFRA debate and elsewhere, is shaped not only by these kind of specific fears but by a near-total uncertainty about what happens after this, and after that, and so on. And given how the ground has shifted recently, I think there would be real benefits for both sides to having more people on the left and center-left taking explicit positions on where we might and ought to go from here.