The Supreme Court’s redefinition of marriage has left many concerned about protecting freedom for everyone who believes that marriage is the union of a man and a woman.
Among them are law professors Richard W. Garnett, John D. Inazu and Michael W. McConnell.
In a characteristically thoughtful essay at Christianity Today, they argue that post-Obergefell, all Americans—regardless of their views about marriage—should see to it that we protect pluralism and tolerance on this issue.
Even those who support same-sex marriage should want to protect the rights of Orthodox Jews, Catholics, Protestants, Latter Day Saints and people of other faiths who believe that marriage is a union of husband and wife.
But what about the rights of the religiously unaffiliated who nevertheless dissent from the new liberal orthodoxy on marriage?
And what about conscientious secular organizations, whether run by believers or not?
In discussing and endorsing the recently introduced First Amendment Defense Act (FADA), professors Garnett, Inazu and McConnell suggest that “the best approach is to tailor FADA to the core area of concern: religious nonprofits.”
We, however, favor and recommend a broader approach. Here are four reasons why.
1. Principles, Not Politics, First
We should always start with the principle at stake. The authors suggest limiting FADA to religious nonprofits because they think doing so “would … mak[e] it more likely that this important legislation can move forward.”
This, of course, is a political judgment. In this case, we believe it best to begin by defending the principle at stake and leaving the politics to the politicians in the first instance.
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2. Secular Non-Profits Deserve Protections, Too
There are no good arguments for leaving secular non-profits out of FADA’s protections.
As Garnett, Inazu and McConnell point out, non-profits do a great deal of good for society (more on that below).
But that is true of non-religiously affiliated ones, too. Besides, the First Amendment protects not only the free exercise of religion, but also freedoms of speech and assembly.
FADA is meant to reinforce these freedoms by protecting all Americans from unnecessary government penalties.
Here the pro-life movement provides an example: it successfully campaigned for policies to protect citizens generally—not just the religiously observant—from being forced into complicity with the evil of abortion.
We should likewise protect both religious and secular conscience on marriage.
3. Religious Freedom Isn’t Just for Non-Profits
Religious freedom isn’t just for non-profits. As the Supreme Court reminded us last year in its Hobby Lobby case, “[a] corporation is simply a form of organization used by human beings[.] … When rights … are extended to corporations, the purpose is to protect the rights of these people.”
Indeed. Basic conscience rights, including the freedom of religion, are for all Americans, in all contexts—not just on Sunday morning, but all week; not just in charities and schools, but on Main Street and, yes, even Wall Street.
Again, the pro-life movement’s example is instructive.
It protected pro-life conscience across the board, not just for non-profits, because opening a business (even as an ob-gyn doctor) shouldn’t require leaving your principles behind.
Thanks to its efforts, people of deep religious or secular conviction concerning the moral worth of unborn children can serve as doctors, nurses and medical workers without being forced to perform abortions.
Likewise, we should ensure protections for marriage counselors, psychologists and other professionals with deep convictions about marriage, and FADA does just that.
Professors Garnett, Inazu and McConnell say:
The federal Religious Freedom Restoration Act (RFRA) protects some for-profits in cases where sincere religious exercise is substantially burdened. FADA, however, has different, more specific aims than RFRA and it addresses situations that for-profit businesses are not likely to confront.
But RFRA also protects non-profits, and the authors agree that FADA is still needed for them. Then why not for for-profits?
That they are merely less likely to face discrimination by the federal government does not strike us as an adequate reason for not protecting them when they do.
FADA is necessary because RFRA by itself—as applied to the marriage issue—leaves judges wide discretion to let the federal government discriminate against individuals and institutions that retain a sound understanding of marriage as a conjugal relationship.
FADA, like other civil rights laws, makes it clear where there is never a compelling reason to discriminate against people or groups for living out the conviction that marriage is the union of husband and wife.
4. Religious Freedom Is a Human Right, and Not Just for Groups We Admire
Finally, it is critical to bear in mind that religious freedom is a basic human right.
We can and should point to the many good works that religious non-profits perform, but in truth, this is a secondary (albeit important!) reason for protecting the conscience rights of the individuals and institutions that run them.
Unfortunately, the argument made by Garnett, Inazu and McConnell is likely to sound to unsympathetic ears like special pleading, as suggested even by the title given the piece by the Christian magazine’s editor: “How to Protect Endangered Religious Groups You Admire: When religious liberty and billions of dollars for the poor and oppressed are threatened.”
While this may be rhetorically effective with some readers, it obscures an essential point: religious freedom is not just for groups we “admire” and not just for groups that help “the poor and oppressed.”
Yes, religious liberty often produces good fruits, but we should defend it not on that basis alone. First and foremost, we need to defend it as a natural right.
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No one should be legally penalized for believing that marriage is a male-female relationship or for acting on that belief.
Public policy should reflect this principle, and the First Amendment Defense Act is admirable—and necessary—as a means of effectuating it. Trade-offs may have to be made to get FADA passed.
But politicians will have to weigh those during mark-ups, floor debates, the amendment process; for now, let’s be as clear as possible about the ideals that should guide it.