By L. Martin Nussbaum
Editor’s note: Archbishop William E. Lori asked L. Martin Nussbaum to serve as guest columnist for this week’s “Charity in Truth.” Nussbaum is a First Amendment attorney in Coloroda Springs. His contribution is below.
Thirty-two states have, by large majorities, affirmed the definition of marriage as the union of one man and one woman. Even so, some gay activists predict reversing this trend on Election Day 2012 when the citizens in Maine, Maryland, Minnesota and Washington vote on the definition of marriage.
We all recognize the contributions of homosexuals to society. Some reason from this fact alone that a state shouldn’t permit itself or others to marginalize homosexuals or discriminate against them. Same-sex marriage supporters fail to recognize that if they achieve their goal, they may unwittingly mimic the discrimination they condemn. How? Without meaningful conscience protections, the enactment of same-sex marriage amendments, or statutes like Maryland’s, will accelerate efforts to discriminate against and marginalize individuals and institutions supporting traditional marriage.
Professor Eugene Volockh, a supporter of same-sex marriage, writes that, after the gay rights movement ends what it considers to be repressive laws against gays and wins laws securing equal treatment, its next goal “has to do with delegitimizing and legally punishing private behavior that discriminates against or condemns homosexuals.”
Consider some examples of how supporters of traditional marriage – often acting from their faith traditions – are already being punished for their beliefs. Because the Boy Scouts do not allow homosexual scoutmasters, city councils and school districts have cancelled leases and revoked permits allowing them to use parks and public buildings. The Hastings Law School, with affirmation from the U.S. Supreme Court, has disqualified its Christian Legal Society chapter from being a recognized student group. Why? Because CLS did not permit students in leadership positions who refused to limit their sexual activity to marriage. Vanderbilt University has even banned its 500-member Catholic student group for requiring its leaders to be Catholic.
Eastern Michigan University expelled Julea Ward, a 3.91 GPA graduate student from its counseling program. Her failing? For reasons of religious conscience, Ward declined to counsel a prospective client suffering from his same-sex relationship breakup. With permission of her supervisor, Ward instead referred the prospective client to a colleague who had no moral objections to such conduct.
The university claimed it had to expel Ward because the code of ethics for counselors supposedly forbade Ward from informing her professional work with her Christian morals. Thus, politically correct professional codes, coupled with accreditation standards, become a powerful tool to bar those holding traditional Christian beliefs from professional licensure and their institutions from accreditation.
This is not theoretical. In Boston, the District of Columbia, San Francisco and Illinois, government deems Catholic Charities unfit to place children for adoption because they insist upon putting every child in a home with a mother and a father.
Same-sex marriage laws often pretend to protect religious freedom. Maryland’s statute, for example, protects religious organizations from being forced to solmenize gay unions and from being forced to promote same-sex unions. The first “protection” addresses a nearly non-existent risk. The second nullifies the “protection” if a ministry provides social, educational, or medical services under a contract with government. In addition to punishing the religious community from working with government in this way, the statute’s “protection” of religious freedom does not apply to a single example identified above. It also provides no protection to individuals with traditional beliefs – like an innkeeper or a wedding photographer – who might decline to assist with celebrating such unions contrary to their religious beliefs.
If same-sex marriage laws without robust religious exemption are permitted to stand, it is much more likely that ministries with traditional religious beliefs will find themselves barred from using public parks, renting government buildings, staffing themselves with like-minded people of faith, acquiring essential licensure and bidding on government social services contracts. They may also find themselves required to provide leave and medical benefits contrary to their faith, and they will experience assaults on their tax exempt status.
Just as described by Professor Volokh, the marginalization of and discrimination against traditional marriage supporters has begun. There will be more of this if states adopt same-sex marriage laws, because activists will invoke such laws as articulating a public policy that justifies making outcasts of their opponents. The same values that motivate some to support same-sex marriage laws require them to withhold their support until there are provisions in the same laws that fully protect people and institutions of faith from forced violation of conscience. Maryland’s statute offers only a charade for such protection.
Copyright (c) Oct. 4, 2012 CatholicReview.org