Religious Liberty after the Supreme Court Gay Marriage Decision

The Supreme Court of the United States released its decision on the topic of gay marriage on Friday (article).

The majority view (p. 6-39) supported gay marriage as a constitutional right, thereby nullifying any state laws addressing the issue.

The minority views (p. 40-103) included the opinion that this was fundamentally and constitutionally a states’ rights issue and the prediction that this decision would inevitably be used to restrict religious liberty.

For context, it should be noted that gay marriage was a total non-starter just a generation ago. Opinions on the topic have been evolving over the years, to the point that many states have legalized civil unions between members of the same sex and some states have taken up legislation regarding gay marriage or had referendums on the topic.

I suspect that gay marriage may have obtained majority support in the U.S. within the next decade or so.

As one of the dissenting justices noted, forcing the change effectively quashes public debate on the topic and suspends the natural evolution of thinking that was already underway. The decision forced people into the diametrically opposite positions of agreeing or disagreeing with the decision, instead of the spectrum of beliefs they previously held.

As another dissenting justice noted, the decision was also an attack on democracy, effectively snatching the legislative power from the elected representatives of the American people and giving it to nine unelected judges. The Left rejoiced at the decision but I doubt they’d be content with a similarly weighty decision from a right-leaning Supreme Court. Having such a controversial issue decided by such a small group of people could be incredibly dangerous.

On the issue of religious liberty, I agree that this decision will likely become a cudgel used to attack people of faith. From religious colleges being forced to provide married housing to gay couples, to bakers being forced to make wedding cakes for gay marriages, many individual and institutional religious liberties are now vulnerable.

Aside from any personal opinion on gay marriage, the ruling, or the ruling’s potential consequences, the American people need to have a real discussion about principled liberty.

One question is frequently posed to the opponents of religious liberty:

  • Would you likewise force a Muslim T-shirt printer to manufacture T-shirts that mock the Prophet Muhammad?

This question does get at one of the Left’s protected classes (Muslims) but does little to convince the atheists and secularists on that side.

I think the discussion would benefit from removing religion entirely.

Consider these principled positions under duress:

  • Would you force a gay artist to create artwork for an ad campaign proclaiming, “All homosexuals are going to hell!”?
  • Would you force a vegetarian chef to cater a Meat-Lover’s Extravaganza, held in an active slaughterhouse?

These extreme examples would provide context for the Left to consider themselves in a similarly conflicted position. Remember: The goal is to persuade the opposing view.

No respectable person is advocating discrimination in the marketplace but an artist’s creations are not items on a shelf.

To achieve protection for the principled view, we should drill down to the essential distinction between:

  • GENERAL SERVICE — Selling a ready-made or standard product to a random customer.
  • COMMISSIONED SERVICE — Contracting to create a custom product for a specific customer or cause, which becomes part of the artist’s public portfolio (an implicit endorsement).

These are two completely different types of transaction. By focusing on the contractual difference, you could remove the red-herring of religious belief and get to the heart of ‘implicit endorsement’.

Noone should be forced to enter into a contractual agreement.

The obviousness of this statement belies its rhetorical value.

Although I believe in the constitutional right to Religious Liberty, I think it may be easier to obtain the same protections by calling it ‘Contractual Liberty’ and fighting for it in those terms.

By also offering protection to those on the Left, I think this sort of legislation could garner bipartisan support and *actually* get passed into law.

~ SoSaysSunny    (that’s my opinion, take it or leave it … or debate it!)


Categories: Faith, Life, Politics | Tags: , , , , | Leave a comment

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