Limits on Free Exercise

No, this is not about good deals at the gym. I ran across this post from Andrew Koppelman late yesterday and wanted to comment on it because it touches on a topic I've addressed, although not substantively, in the past.

Koppelman's concern here, as you can see (because you did follow the link and you did read the post, didn't you? And do go back and read the posts Koppelman links to -- they're important here) is religious exemptions written into civil rights laws, specifically laws legalizing same-sex marriage.

Religious exemptions from antidiscrimination laws are fairly costless, I’ve argued: as long as the religious dissenters are idiosyncratic outliers – and they generally will be, based on the scant number of accommodation claims we’ve seen – they’ll have no effect on gay people’s opportunities, and so they can harmlessly be left to live out their ideals in peace.

What Koppelman is missing here is that we are not dealing with a few outliers -- we are dealing with a well-organized and amply funded group ($40 million to support Prop 8; $165 million on the attempt to repeal marriage in Massachusetts) who are not prepared to play fair.

In another post, Koppelman refers to something that bothered me about Gov. John Lynch's proposed amendment to the New Hampshire marriage statute and that directly contradicts Koppelan's assumption:

Some are uncomfortable with the practice of singling out religion in this way, but the narrowness of the religious exemption is precisely why it is so clear that we can afford it. If a broader set of people were able to bring exemption claims, then we would have a less tractable conflict. In the contemporary United States, the claims for a conscientious right to discriminate will almost always be religious claims. Only a small minority of discriminators will be able to defend themselves on this basis. Most employers do not want to announce that they discriminate on the basis of sexual orientation, and so this defense is unavailable to them. (Emphasis mine)

This is exactly what Lynch's amendment jumped right into, feet first. (For my comments on Lynch's language, see here; scroll down to "New Hampshire Note." A follow-up is here.) I remarked at the time that the language was overbroad, as well as being redundant: in effect, it made any association with any group claiming to be "religious" in nature grounds for legalized discrimination in any aspect of daily life.

Religious freedom is guaranteed in this country under the Establishment Clause and the Free Exercise Clause of the First Amendment, and the courts have generally bent over backwards to accommodate claims of religious discrimination: that's not something we like in this country. By the same token, as I've said any number of times, there are limits to any right, no matter how fundamental it is. Part of the process of democracy is establishing those limits, which is something we've done over the course of time and something the religious right has been challenging. Thus, the Catholic Charities were organized as a separate entity legally somewhat removed from the Catholic Church specifically to enable it to accept government funding to carry out its work without violating separation of church and state. Suddenly, Catholic Charities makes a big deal out of abandoning its adoption services because placing children with gay parents would violate its religious doctrine. (They may have been refusing to do so for years, but the key factor here is that we'd never heard of it until they began screaming "religious discrimination" and bailed, which only happened within the past couple of years.)

To go back to Koppelman's original post, I think he's misreading the situation in New Hampshire:

There are people who are reprehensibly embracing self-aggrandizing fantasies that are hurting real people. But I’m sorry to say that they’re not the Christian conservatives. They are the people on my side, the gay rights side, who are willing to sacrifice the hopes of New Hampshire gays who want to marry, out of pure malice toward their political opponents.

Can I call this an overstatement? My reading of the situation in New Hampshire is not that anyone is interested in beating up the religious conservatives, no matter how much they deserve it, nor to I think malice is involved (unless one chooses to read the legislature's annoyance at being dictated to by the governor as "malice," which is a stretch). I think there is a legitimate concern over extending religious protections beyond what is reasonable or workable. Let's face it, Lynch came up with that language as political cover, and it is overbroad -- including that amendment as written would lay the groundwork for years of litigation, count on it. (And I do not discount the idea that Lynch did it on purpose -- he opposes the statute but doesn't really have any legitimate grounds for a veto.) The limits that I mentioned above seem to me to be perfectly workable -- the distinction between providing a public accommodation that is subject to antidiscrimination laws and one's personal religious beliefs has been fairly clear in the past, and it's only the effort by the religious right to take more and more territory that has blurred it. Koppelman is rather ingenuously buying into this campaign by assuming that religious objections to recognizing same-sex marriages will be few and far between (although I'll be the first to admit he might be correct, which would be wonderful) and all perfectly legitimate, and condemning those who quite rightly want to maintain a workable status quo as "bigots," when the history of the religious right argues just the opposite.