Douthat on Indiana's SB 101

As I've said before, while I don't agree with Ross Douthat on many things, I think he is by far the most worthwhile and thoughtful conversation partner on the right.  His post from yesterday is an example of why I think he brings a lot to the table.

Douthat hits on the spectre that floats around the gay marriage discussion in the United States, and that is the Civil Rights Movement.  On January 14, 1963, upon his inauguration as Governor of Alabama, George Wallace gave his infamous "segregation now, segregation tomorrow, segregation forever" speech.  Eighteen years later, the United States Supreme Court stripped a private religious college in nearby South Carolina, Bob Jones University, of its tax-exempt status for mandating segregation among its students.  In eighteen years, the notion of overt segregation between black and white went from a mainstream part of political discourse in the South to so beyond the pale that it was completely unacceptable to be advocated by anyone under any set of circumstances, and its verboten status would be enforced by legal consequences.  While no one really believes that the Civil Rights Movement ended racism against African-Americans, it is still the case that open endorsement of segregation is not part of the acceptable political and social discourse in the United States.  The Civil Rights Movement, rather quickly, banished that view from the field.

We have seen a similar, and perhaps even more rapid, change of attitudes on the question of gay marriage and the rights and status of LGBT people generally.  In that light, I don't think it is improper or unreasonable to pose the question that Douthat does--is opposition to same sex marriage headed for the same place that segregation went?  Which is to say, are we headed for a reality in which it is legally unacceptable to advocate publicly for the notion that gay marriages are not real marriages?

I gather from Douthat's piece that he thinks the Civil Rights Movement is sui generis, and thus the efforts made to stamp out segregation are not appropriate or applicable to other cases of discrimination.  That's a defensible position.  The question of race has a unique, and uniquely bad, history in the United States.  The U.S. fought a war against itself primarily due to this question, and the key civil rights amendment to the Constitution--the 14th--comes out of this context.  I don't think it is a bad faith argument or special pleading to assert that racial discrimination should be treated differently from other kinds of discrimination in the United States.

But there is another view, and I think we should be honest in presenting it.
This view says that there is absolutely no difference between the Civil Rights Movement and the movement for gay marriage.  And, by extension, the efforts used to stamp out segregation should be used to stamp out public opposition to same sex marriage.  If that means stripping churches and religious schools of tax-exempt status, a la what happened to Bob Jones, so be it.  After all, Bob Jones University defended its position on segregation in terms of religious commitment.  The invocation of religion didn't get Bob Jones off the hook in 1980, and it shouldn't get churches or other religiously-affiliated bodies off the hook in 2015, or 2020.

Contrary to some (I suspect) on the left, I do not think it is alarmist or unreasonable for Douthat to raise these possibilities.  But I would note a couple of things.

First, the Bob Jones University scenario only occurred because fellow religious believers, especially other Southern evangelicals, allowed it to happen.  One of the key elements of the Civil Rights Movement was its explicitly moral and religious character.  In my view, more than anything else, this framing of the issue by Martin Luther King and others wore away at the religious grounding of segregation.  While it is true that Bob Jones defended its segregationist position on religious grounds, by 1980 the rest of the Southern religious establishment had abandoned Bob Jones and segregation.  Indeed, the move to strip Bob Jones of its tax exempt status was a product of the Presidential administration of Jimmy Carter, a Southern evangelical.  While Carter was very much a liberal on race in general, I think it is fair to say that making an example of Bob Jones served the purpose of distancing some of the more progressive parts of the Southern evangelical movement from their bad racial history.  They had moved on, and so they had little interest in preventing, and even some incentive in supporting, the hit on Bob Jones.

On the other hand, if the entirety of the Southern Baptist Convention took the Bob Jones position in 1980, would the Supreme Court have yanked tax exempt status for the entire group, in the teeth of religious opposition?  Maybe, maybe not; personally, I think not.  But in any event the issue never came up.  The Southern Baptist Convention had left the Bob Jones Universities of the world to go it alone on segregation.  By the time 1980 came around, Bob Jones was really the last hold-out, and it was relatively costless to make an example out of them.   By the time it came to the Supreme Court, it was all but a fait accompli--recognizing the reality that already existed, rather than imposing a new reality.

There are signs of a religious surge in support of gay marriage, particularly among young religious folks (close to half of white evangelicals under 30 favor gay marriage).  So, it may come pass that religious believers abandon the anti-gay marriage hold-outs to their fate the way their grandparents abandoned Bob Jones it is fate.  But, I think it is clear that we are a distance away from that happening. And until we are, until there is that sort of consensus among religious believers, I don't think another Bob Jones is in the offing.

Second, there is a baseline level of acceptance of the idea that religious institutions can discriminate with regard to marriage.  There is a broad consensus that a Jewish rabbi can refuse to participate in a mixed marriage, or that a Catholic priest can refuse to marry a divorced (but not annulled) person.  This is, by any reasonable standard, a form of discrimination, and yet there is a sense that such discrimination is a core part of the free exercise of religion protected by the First Amendment.  Nor do people bat an eyelash at the idea that those religious bodies will teach and advocate those positions.  Those positions are certainly controversial within those religious communities, but we basically accept that outsiders should leave that debate to the members of those religious communities and allow them to work it out for themselves, even if it means that some people will be discriminated against in an otherwise unacceptable way.

As a grouping exercise, gay marriage seems more like the mixed marriage example than like segregation.  That doesn't resolve the question definitively, but I think it calls into question the plausibility of some of the scenarios Douthat raises.  I'm not say that those things can't or won't happen; I'm saying I think it's unlikely they will happen, because I think that the broad majority has a sense (if inchoate) of where the line between Free Exercise and improper discrimination.

Now, if people generally think that it is OK for a rabbi to refuse to marry a mixed religious couple, and its OK for an Orthodox Jewish day school to teach that mixed marriages are unacceptable, does it follow that they think it is OK for an Orthodox Jewish business owner to refuse to serve a mixed religious couple?  Not necessarily.  And that brings us right back to Indiana's SB 101.  Saying that an actual house of worship does not have to participate in a gay marriage is not the same thing as saying that anyone who attends that house of worship has the same freedom.  Despite the existence of partisans on both sides, most people think that there is some place between those two poles where the balance between the First Amendment and the need to prevent discrimination tips in favor of preventing discrimination.  Where that line is located is a tricky and controversial question.

I think SB 101 is on the wrong side of the line, by a significant margin.  But I think that the (less aggressive) federal RFRA is problematic as well, for boring legal reasons. [The short answer is that I agree with (very conservative) Justice Antonin Scalia that religious exemptions as applied to individuals entangle the government in religion in bad ways--see his 1990 opinion in Employment Division v. Smith (a decision which caused the original RFRA to be drafted and passed).]  And I think the real reason this law was passed was anti-gay animus, not genuine concern for religious liberty.

But I understand the kinds of concerns Douthat raises.  If we are going to find a way to live together, we are going to have to talk about them, and we are going to have to find a way to balance these interests.  Somehow.


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