"Dogs and Cats Living Together": Same Sex Marriage and the End of Hegemony

Well, it's been an odd week of blog reading for me. I've been dropping in over at Rod Dreher's page and reading his increasingly paranoid posts, and the comments thereto. (Before I go on, let me point out this somewhat less paranoid post, influenced as it is by Dreher's very real affection for his interlocutor, Andrew Sullivan.)

Why, you may ask, am I spending time this way?

Well, I've been trying to get a handle on the angst on the Christian right--the fear that the application of anti-discrimination law to GLBT citizens plus the likely though not guaranteed striking down of anti-same sex marriage laws will strip Christian traditionalists of protections against doing business involving same sex marriage ("SSM"). The lack of exemptions to the generally applicable anti-discrimination laws and ordinances gives that some salience, but the panic in Dreher's apocalyptic tone, and that of his commenters, was puzzling to me, and I wanted to try to understand it.

I mean, under the Free Exercise Clause of the First Amendment, a ministerial exception of considerable breadth exists for avowedly religious bodies. So we're talking for-profit businesses--wedding cake bakers, caterers, photographers, that sort of thing. Provision of secular services to GLBT people by those who serve the general public. Dreher's page these last two weeks evokes McCarthyism and the invocation of the Holocaust. The emotional heft behind this is hard to fathom, and I confess I'm not really there.

Still, I have a few thoughts.

The irony in this situation--so bitter that I haven't seen any acknowledgment of it on the right--is that there was a body of cases from the Warren and Burger Courts, in which the liberal justices pioneered--joined by the moderate and even some conservative justices--that found room for some exemptions based on religious scruples to generally applicable statutes. A good late example is Wisconsin v. Yoder (1971), in which all of the justices agreed that the Old Order Amish should be allowed to homeschool their children in accordance with their faith. (Douglas dissented but only on the limited ground that the lower courts should have ascertained the student's views and considered their interests as well as the parents'; Justice Stewart based his concurrence on the fact that "that this record simply does not present the interesting and important issue discussed in Part II of the dissenting opinion of MR. JUSTICE DOUGLAS."). The Yoder opinions give a pretty good rundown on the history of the exemption cases.

Then, in 1992, the Court reversed itself, in Employment Division v Smith, in which Justice Scalia wrote that "if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."

In other words, no exemptions from generally applicable laws are constitutionally required by the First Amendment. Te case involved Native Americans who use peyote in religious rituals, who had been fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church, and denied unemployment by the state of Oregon. The majority--Scalia, Rehnquist, White, Kennedy, and Stevens--and O'Connor, who concurred--are all, except Stevens, who was a maverick, but more often trended liberal than conservative--were conservatives. The dissenters--Brennan, Marshall, and Blackmun--were the liberal wing of the Court at that time. They (and O'Connor, who joined the majority for different reasons) deplored the resurrection of Reynolds v. United States (1878), which upheld the federal criminal anti-bigamy statute against a free exercise claim by limiting free exercise to belief, not action. The Court in Smith left the question of exemptions to protect religious minorities to the political process.

Fast forward 23 years, and Scalia's seeming assumption that his brand of conservative Christianity would always retain the safety of majoritarian hegemony is wearing thin. Polling data shows that more churches are welcoming to gays and lesbians, as are young Catholics, and even young evangelicals. Indeed, as Rachel Held Evans wrote in 2012:

WWhen asked by The Barna Group what words or phrases best describe Christianity, the top response among Americans ages 16-29 was “antihomosexual.” For a staggering 91 percent of non-Christians, this was the first word that came to their mind when asked about the Christian faith. The same was true for 80 percent of young churchgoers.

And the "Nones"--those unaffiliated with organized religion at all--are on the rise.

This may explain the increasing stridency of Scalia's dissents--Smith was issued a mere six years after Bowers v Hardwick (1986), which upheld the criminalization of "homosexual sodomy" (to use the majority's charming term). It was, it has turned out, the high-water mark for Scalia's view.

Ten years after Bowers, four years after Smith, the Court indicated that there was some constitutional limit to majoritarian legal persecution of gays and lesbians, in Romer v Evans (1996), which held that a state constitutional amendment which precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" violated the Equal Protection Clause of the 14th Amendment by uniquely limiting the rights of gays and lesbians of access to the political process. Even that was controversial--Scalia opened his opinion, joined by Rehnquist and Thomas, with the infamous line "The Court has mistaken a Kulturkampf for a fit of spite." The Kulturkampf, Scalia makes clear, is being waged by gays and lesbians, themselves historically the victims of a real Kulturkampf. But in Scalia's fevered, Dreher-like imagination:

The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a "`bare . . . desire to harm'" homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court.

In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 13, is evil. I vigorously dissent.

Of course, the Amendment prevented gays and lesbians alone, of all citizens, from resort to the political process, which Scalia elides.

When the Court likewise overturned Bowers in Lawrence v Texas (2003), Scalia again sounded the Cloister Bell. And again in United States v. Windsor and Hollingsworth v Perry. (Both in 2013.)

Ironically, the Court's most famous conservative Catholic in Smith put minority faiths at the mercy of majorities in terms of freedom to act on their faith. The nuanced effort to balance the legitimate interests of the state and federal government to enact laws of general applicability against the rights of conscience pioneered by the New Deal Court, and honed by the Warren and Burger Courts was discarded.

Now, the so-called "Trads" are hoist on their own petard. They trusted in the power of numbers, and in using secular law as a club. Having lost the former, they now fear that they will be treated to the second as they treated others. (No, really.)

Of course, they should not be.

Oh, their ideas should be rebutted in the public square, and, ultimately, rejected, but politely, firmly. Remember what Churchill gave as the moral of his The Second World War: "In War: Resolution, In Defeat: Defiance, In Victory: Magnanimity, In Peace: Goodwill." If victory is indeed on the horizon, magnanimity can help secure it.

As to unscrambling the eggs Scalia broke, at a minimum, I'd have to say, my off-the-cuff solution to the problem would be:

1. No Exemption or accommodation for corporate entities. (Leaving asides of course, religious corporations in states that allow for them. Business corporations, I mean.)

2. Likewise for public accommodations. Open to the general public catering halls, too bad; K of C facilities available to members of the Roman Catholic community, that's different. But no exclusions just for gays--if you're serving the general public, you take all comers.

Example: Mary's Christian Cakes--unincorporated private business, bakery as ministry? Accommodate.

Costco's Wedding Cakes Department? Make the cake.