Gay Marriage and Religious Freedom: Roommates or Stalemates?

My colleague Ben Riggs has written a thoughtful piece arguing that conservatives should acknowledge that religious freedom and gay marriage can peacefully co-exist in a secular democracy like ours. This is a position I am sympathetic to, and always appreciate the comments of those who hold the view, whether they be from the Wendell Berrys and David Brooks of the right or the Douglas Laycocks of the left.

Ultimately, however, this a position I can’t bring myself to hold. Ben rightly points out the crucial case of Griswold v. Connecticut as firmly establishing that our society would not define marriage as a conjugal union between man and woman by legalizing contraception. While this case largely can be seen as the original sin of all our legal sexual anarchy, it was not ultimately the final deathblow.

The nail in the coffin came some seven years later in Eisenstadt v. Baird. In Griswold, the Supreme Court had tried its damnedest to avoid relying on the Fourteenth Amendment, but when asked why married people could use contraception but single people could not, it had no choice. In Eisenstaedt the Court held that, under the Fourteenth Amendment’s demand for equality, the state could not discriminate between the married and unmarried. This was the case that decided there was nothing special about marriage, and it was the case that supplied precedent for Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, Windsor v. Perry, and ultimately will be the basis of the coming gay marriage cases.

The problem with our views of marriage can be traced not only to the advent of contraceptives, but to our perverted notions of equality. Our hunger for equality will ultimately demand that no one person and no relationship be special. With equality at the wheel, any coherent and conceivable sexual ethic, or any ethic for that matter, will be pilloried into oblivion.

Secondly, I’m afraid we can’t rely on the First Amendment to protect us. In the 1980s, the First Amendment was effectively sterilized by a string of cases exhibiting a Rawlsian and Dworkinian understanding of religion, and sadly, of equality. The last of these was Employment Division v. Smith, where the “conservative” Justice Scalia authored an opinion that would make John Rawls proud. Currently, the First Amendment doesn’t consider religion to be anything special in the secular-public sphere. Violations of the First Amendment only occur when the government goes out of its way to harm religion. A law legalizing same-sex marriage ultimately fails this test. The only protection currently afforded religious groups is the Religious Freedom Restoration Act, passed by congress in reaction to Smith, and as a statute, it can be repealed by simple majority vote.

I wholeheartedly wish there were a way around the disastrous culture wars we have found ourselves in. However, since society’s health is directly correlated to its sexual ethic, conservatives must ultimately believe that Griswold should be overturned, even if that will never be a political reality, and the past half century of constitutional cases leave us with the conclusion that any faith placed in our once great constitutional structure is ultimately misguided.