December 18, 2008

Sed contra

By: Daniel Kennelly

Wading into Joe Carter and Conor Friedersdorf’s dustup on gay marriage, Andrew Sullivan writes that “there is no conflict whatever between religious liberty and civil same-sex marriage. . . . The whole idea is beyond paranoid – and civil equality and religious difference, strongly expressed, are completely compatible in a diverse America.”

But I wonder if legal scholars who contributed to this 2007 amicus curiae brief by the Becket Fund for Religious Liberty—some of whom support gay marriage—could be classified as “beyond paranoid”:

Although some of the scholars [in this brief] wholeheartedly support same-sex marriage and others oppose it, they all share one conclusion—changing the legal definition of “marriage” to include same-sex couples will create an unprecedented level of legal conflict under the Free Speech and  Religion Clauses of the First Amendment. These conflicts will arise in manifold areas of law (such as public accommodation law, employment discrimination and employment benefits law, professional accreditation, government contracting, and many others) that routinely apply to a wide range of religious institutions (such as houses of worship, religious schools, religious hospitals, and other religious social service providers).  Regardless of how these conflicts would ultimately be resolved, there can be no doubt that they would arise with great frequency if this Court (and others) were to take the step of expanding the legal definition of “marriage” to include couples that many religious groups cannot, in conscience, affirm or support as “married.”

Which is why I’ve come to believe, as I’ve mentioned before, that there’s probably only one way to bring the two sides together: some form of “civil unions for all”, doing away with “marriage” entirely.

I’m not unaware of the fact that it seems like no one gives this idea much credit—least of all the noisiest advocates on each side. On the one hand, the National Association of Evangelicals recently forced out a spokesman who expressed support for civil unions on NPR. On the other, we’ve got significant segments of the anti-Prop 8 crowd who don’t sound like they’re in the mood for compromise either.

What’s lacking on both sides, but especially on the social conservative side, is next-generation leadership that recognizes that the old battleground is just about to be overrun and that a new, more defensible line needs to be drawn. I suspect that the tenuousness of their victory in the Prop 8 battle, as well as the ferocity of the backlash against Prop 8 supporters, will result in new leaders stepping forward eventually.