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A Review of Same-Sex Marriage and Religious Liberty: Emerging Conflicts

By Lee Duigon
December 30, 2008
If it be so, our God whom we serve is able to deliver us from the burning fiery furnace, and he will deliver us out of thine hand, O king.
But if not, be it known unto thee, O king, that we will not serve thy gods, nor worship the golden image which thou hast set up.
— Daniel 3:17–18
“At the heart of Liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
—Supreme Court Justice Anthony Kennedy, quoted in Same-Sex Marriage and Religious Liberty, p. 139
[Y]e shall be as gods, knowing good and evil. — Genesis 3:5

When the serpent told Eve that she and Adam would be as gods if they disobeyed God and ate the forbidden fruit, he meant that they would be able to decide for themselves what was good and what was evil.[1] They would, in Justice Kennedy’s words, acquire “the right to define one’s own concept of existence, of meaning,” etc.

One wonders whether it ever occurred to the Supreme Court justice that he was talking just like Satan. The judge made his remarks in the course of finding a long-lost right to sodomy buried in the Constitution.[2] But because Satan’s arguments still seem persuasive to fallen man, we find ourselves engaged, nationally, in ridiculous arguments over same-sex “marriage.”

The Becket Fund, supposedly defenders of religious liberty, has published a thick volume filled with such discussions. The book powerfully conveys a certain message—but not the one the authors intended.

A Thought Experiment

Same-Sex Marriage and Religious Liberty is a tome, very heavy reading, a mountain of court cases, thickly forested with footnotes. The authors are law professors, all seven of them. The plan of the book is a “thought experiment”: given same-sex “marriage” as the law of the land, how might the religious liberties of “conscientious objectors” be preserved?

Marc Stern, a religious liberties expert with the American Jewish Congress, sets a chilling tone in the book’s opening chapter, “Same-sex Marriage and the Churches.” Some readers will be overwhelmed by information overload—311 footnotes in this chapter alone. But important points are being raised here, which perhaps can be encapsulated in a few selected quotes.

Free speech, as Americans know it, “is eroding across Europe and elsewhere in the Western world, including the United States” (p. 2). Courts in Canada and other countries routinely restrict speech, and are quite candid about what they are doing. And courts are not the only agencies doing it. Schools and universities restrict speech all the time, in favor of “the substantive values the school seeks to inculcate” (p. 12).

We all know what “values” those are.

Stern discusses “the government’s interest in eliminating discrimination and strengthening the newly-redefined family” (p. 25) by enforcing a plethora of state and federal civil rights laws.

Whoa! Did someone just redefine the family? Who did that, and by what authority? What branch of government, under the Constitution, is authorized to redefine the family? But that is a question not addressed in this book.

“Public accommodation law has in fact been used as a weapon to force ideological change in organizations,” Stern observes (p. 39); and he concludes, “The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The remaining question is whether champions of tolerance are prepared to tolerate proponents of a different ethical vision. I think the answer will be no” (p. 57).

Let’s see … Catholic Charities forced out of the adoption business by the state of Massachusetts because they wouldn’t hand children over to same-sex “couples” … a Christian photographer in New Mexico fined more than $6,000 for declining to film a lesbian “wedding” … eHarmony.com, founded by professing Christians to promote traditional marriage, forced by the state of New Jersey to make matches for homosexuals … Yes, it does seem to be getting pretty coercive out there.

Punishing the Churches

Stern’s pessimism is not shared by most of his colleagues.

Jonathan Turley, George Washington University, who admits he personally favors same-sex “marriage” (p. 60), discusses “The Use of Governmental Programs to Penalize Religious Groups with Unpopular Practices” (Chapter II). Granting that the state regularly invokes “the right … to discriminate against certain organizations based on their beliefs” (p. 69), and predicting “the coming storm” of litigation, Turley suggests the government simply not try to force religious groups to conform by threatening their tax exemptions. If not, he warns, “this debate will turn increasingly ugly if one side is viewed as suppressed in its efforts to raise charitable contributions or reach donors” (p. 75).

Robin Wilson, Washington and Lee University, predicts that the next step in the same-sex “marriage” battle will be “a concerted effort [by the government] to take same-sex marriage from a negative right to be free of state interference to a positive entitlement to assistance by others” (p. 80). The folks at eHarmony might say that part of the battle has already begun, with themselves among the first captives taken. Churches, she writes, may be in for “a legal battering.”

She argues that, based on legislation and court rulings that protect American doctors from being forced to perform abortions, clergy might be protected from being forced to perform “gay marriages.”

“If it is not unconstitutional to order a clergy person to administer a sacrament against his will,” she asks, “it is hard to imagine what would be unconstitutional” (p. 95). Her conclusion is that the state had better legislate “conscience clauses” before legalizing same-sex “marriage”—otherwise there will be no avoiding “the looming tide of litigation” (p. 102).

Douglas Kmiec, Pepperdine University, discusses the “Coming Antidiscrimination Campaign Against Religion” (Chapter IV). “[C]an the government punish churches or other religious bodies that refuse to perform same-sex marriage or not?” he asks; and answers, “The answer varies widely by jurisdiction and is multi-faceted and the subject of much guesswork” (p. 106). He hopes that, in the end, “religious freedom should prevail” (p. 120)—because same-sex “marriage” and traditional marriage are not the same thing; homosexuals can always get their “marriages” performed elsewhere (an argument that completely failed to protect eHarmony.com or the New Mexico photographer); church members consent to church government and rules; and, finally, because “spiritual matters … are insulated from state regulatory processes.”

Are they indeed? Somehow we doubt we would be having these discussions if the insulation were all that effective.

Moral Imbecility

Chapter V, “Moral Conflict and Conflicting Liberties,” is by Chai Feldblum, a self-identified “gay rights” lawyer (p. 126) at Georgetown University. It posits that America now has “a reduced anxiety about homosexuality” (p. 127), thus proving that an incessant campaign of antinomian propaganda, aimed at a nation weak in godliness, really works.

Feldblum discusses the government’s “need” to force restaurant owners, for instance, to “allow a gay couple to eat at their restaurant” (p. 124). This is disingenuous. How are the restaurant owners to know that any two men or two women who drop in for a bite to eat constitute a “gay couple”? The owners can’t possibly know that unless the “couple” insists on making them aware of their sexual practices. In this case they are demanding of the restaurant owners much more than just to be served a meal. But this issue never occurs to Feldblum. Maybe she believes restaurant owners are psychic.

But here is the quintessence of Feldblum: “I believe that heterosexuality and homosexuality are morally neutral characteristics (similar to having red hair or brown hair), and I believe that acting consistently with one’s sexual orientation is a morally good act” (p. 141).

Compare this to what the Bible says:

“Thou shalt not lie with mankind, as with womankind: it is abomination … For whosoever shall commit any of these abominations, even the souls that commit them shall be cut off from among their people” (Lev. 18:22, 29).

An act cannot be “morally good” and an abomination at the same time. But for Feldblum, “religious beliefs” are no different from non-religious “core beliefs” (p. 130), and “the source of beliefs (be it faith in God, belief in spiritual energy”—whatever that is—“or a conviction of the rational five senses) has no relevance. A belief derived from a religious faith should be accorded no more weight—and no less weight—than a belief derived from a non-religious source” (p. 141).

Does this law professor even understand what religion is? Her whole chapter is about separating “belief” from “conduct”—an exercise in futility practiced by judges and legislators who grossly overvalue their own authority and wisdom. But what else can we expect from a moral imbecile?

Charles Reid, Jr., University of St. Thomas, in Chapter VI explores “the decoupling of the legal regulation of marriage from its roots in a Christian order” (p. 157).

This “decoupling” is the whole source of the problem! Reid calls it a “radical departure from tradition” (p. 157), seeks to “demonstrate the ultimate unworkability of a radical separation of religion and law on the subject of marriage” (p. 157), and show “incoherencies … in the liberal theory of marriage that prizes as the ultimate value the continuing consent of parties, with no regard for other considerations” (p. 158).

Fine—but unfortunately, Reid never gets around to telling us how that “decoupling” occurred, or who was responsible for it. All he shows us is that, as late as the 1950s, American courts everywhere, when deciding cases involving marriage and other domestic relationships, routinely based their rulings on Biblical law and Scripture. Any judge who did that nowadays would be despised by his colleagues, and maybe even impeached.

“Is there something about marriage,” Reid wonders, “that is irreducibly religious? Does this larger Western historical experience, only abandoned within the lifetimes of many readers, connect to something more universal about the human person and the nature of marriage?” (p. 177).

Appealing to anthropological research to show that all human societies view marriage as a sacred rite, Reid warns against “completely secularizing” marriage: “The consequence” of doing so, he says, “has been the disposability of human relationships themselves” (p. 179).

Throwaway families … Sounds like there might be something to that.

Reid concludes that the attempt to de-sacralize marriage, of which the push for “gay marriage” is a part, is “doomed to failure” (p. 188). Indeed, “civil society may separate itself from the state’s theory and practice of marriage, in order better to preserve its own” (p. 187).

Editor Douglas Laycock, Yale, in his afterword, tries to get back on the upbeat: “Both religious and sexual minorities”—are they equivalent, professor? And what exactly is a sexual minority?—“need space in which to live their lives according to their own beliefs, values, and identity” (p. 188). He suggests this can be done by the state “supporting both religious liberty and sexual liberty” (p. 190), recognizing same-sex “marriages” but not forcing churches to recognize them. In time, he predicts, “the free market will overwhelm pockets of moral disapproval” (p. 195), thus permanently “ending marriage discrimination” (p. 197).

It need hardly be said that Laycock himself touts “my support for gay rights” (p. 190). He seems hopeful that impersonal market forces will erase Christian morality without the state having to resort to heavy-handed coercion—which underestimates the state’s positive libido for coercion.

“Law” vs. Law

What these erudite law professors have in common is that they’ve all swallowed Satan’s pitch that mortal men can be “as gods.” They all believe that “law” is something that we make up as we go along, tweaking it to be whatever we want it to be at any given time in history. If I am here doing an injustice to Professor Reid, I apologize: but nowhere in his essay does he acknowledge that moral law can only come from God; and if he believes it does, he should have said so.

Someone should have said so! But when it comes to the origin of laws, these authors are silent. One wonders why they would bother to defend religious liberty when they show no sign of being aware that “religious beliefs” might be true. Has that even occurred to them?

It is because we have bought into this kind of moral imbecility that we are having these absurd conversations about whether men can marry men.

“Why do the heathen rage,” asks the Bible, “and the people imagine a vain thing? The kings of the earth set themselves, and the rulers take counsel together, against the LORD, and against his anointed, saying, Let us break their bands asunder, and cast away their cords from us” (Ps. 2:1–3).

It’s hard to imagine anything more vain and fruitless than same-sex “marriage.” But having cast off the cords of God’s law, this is the whirlpool into which the ship of civilization has voluntarily steered itself. And so we go round and round and round, ever deeper into chaos and destruction.

For our part, we do not care how many law professors, judges, politicians, movie stars, and TV newsies tell us that we have to accept “gay marriage,” or else. They may threaten us with fines, imprisonment, revocation of our tax exemptions, public mockery, hate speech laws, or anything they like: we will not bend. God’s laws were not written to be broken, and we shall not be the ones to break them. The Word of God is true, and the word of law professors, who vie with one another in showing their enthusiasm for what the Bible calls abomination, is a lie.

Our God is able to deliver us from the fiery furnaces of the ungodly. Whether He does or not, at this particular time, is up to Him: God has His own schedule. If He chooses to deliver us later rather than sooner, it doesn’t let us off from adhering to His law. Nor does it give the legal profession an excuse to substitute its own man-made “law” for God’s, which is the only law.

Eventually God will bring an end to this present dark age of moral illiteracy, and people will once again know right from wrong as defined not by themselves, but immutably and absolutely by Him.

We look forward to that new day with joy.


[1] See, for instance, R. J. Rushdoony in Sovereignty: “[E]very man as his own god and law, determining good and evil for himself” (Vallecito, CA: Ross House Books, 2007), 26.

[2] Writing for the majority in Lawrence v. Texas, 2003.


Topics: Family & Marriage, Statism

Lee Duigon

Lee is the author of the Bell Mountain Series of novels and a contributing editor for our Faith for All of Life magazine. Lee provides commentary on cultural trends and relevant issues to Christians, along with providing cogent book and media reviews.

Lee has his own blog at www.leeduigon.com.

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