• Gay Marriage vs. Religious Freedom: A proposed solution (part 2)

Gay Marriage vs. Religious Freedom: A proposed solution (part 2)

[Click HERE for part 1]

So how then should we go about creating laws for an increasingly multicultural society which consists of vastly different views on sexuality? How might the government find a way to prevent any cultural or identity group from obtaining unfair legal power over another group?

This is important because terms like “tolerance” and “equality” and “freedom” get thrown around a lot in this debate by those on both sides of the culture war. Yet often the ideas behind those terms, at least in how they are being used by either side, are disingenuous at best. As one of us (Owen) puts it over on his blog: “If the rhetoric of diversity and tolerance from progressive parties are genuine, then we have to look at how we address the conflict of sexuality and faith as a prototype for how we deal with cultural conflicts in general.” Likewise, if the conservatives rallying under the banner of “freedom” are genuinely concerned about that concept, then they must be ready to recognize that some people’s religious convictions will lead to views or practices that they themselves may very well find abhorrent.

We suggest that it starts with a recognition of three basic principles:

  1. Government should, as far as it is able, maintain complete neutrality regarding differences in religious or philosophical perspectives.
  2. In regard to an individual’s private life, the government should allow, as far as it is able, freedom of personal conscience on matters that do not endanger, harm, or materially damage others.
  3. Where the lines between people’s public and private lives blur–such as in the marketplace–the interests of people with differing cultural expressions and identities must be balanced as much as possible. There should be no outright legal favoritism of one culture/identity over another.

These are, we would suggest, fairly uncontroversial and quite reasonable expectations under the form of government established by America’s founders and enshrined within her Constitutional laws. So, with these three propositions in mind, here is how we might begin to find a workable solution to the current same-sex marriage vs. religious freedom debate:

  1. Government should take no official stance regarding the definition of marriage. Rather, it should only acknowledge domestic civil unions between both same-sex and opposite-sex couples. “Marriage” would then return to the individual’s faith community or cultural philosophy to determine.
  2. Government should not make any laws regarding sexual and relational practices that go on in the home between mutually consenting legal adults. This would obviously not apply to some practices whereby individuals are endangered, minors are involved, or someone is not consenting or involved against their will.
  3. When it comes to private businesses, government should adopt a set of principles that will allow them to balance out both same-sex couples’ desire for marriage and those who define marriage as between a male and a female for religious or philosophical reasons. To be a truly multi-cultural society which respects as many people as possible, it is necessary to balance BOTH the principle of freedom from discrimination AND the freedom of religion, and not allow one to always take priority over the other.

Of course, this third point requires a good bit more nuancing. Often times, people who advocate that sexual orientation should be a protected class compare their position to non-discrimination laws based upon ethnicity or gender. While we agree that laws and societal practices were put in place which held back and discriminated against women, African-Americans, and LGBT persons, not all forms of discrimination are of the same severity.

For instance, African-Americans have historcally been subjugated to such widespread institutionalized oppression that they were often forced into higher rates of poverty–which is still present today in many places. On the other hand, people who identify as LGBT tend to come largely from middle-class backgrounds.

Thus, a simple one-to-one appropriation of Civil Rights categories from a half century ago by current LGBT advocates does not accurately fit the situations faced by these two communities of people separated in time, place and cultural standing. In other words, while laws restricting formal, legally recognized same-sex marriage relationships have indeed resulted in feelings of genuine hurt for many in the LGBT community, the actual tangible impacts of favoritism and discrimination are dramatically different than those experienced by African Americans during the Jim Crow era. Given the widespread institutionalized disparity black individuals faced a half-century ago, it was necessary to impose strong anti-discrimination laws in order to protect the freedoms of people of different ethnicities. However, we would argue that in our current cultural climate, we do not need such a one-size-fits-all approach to all forms of discrimination. Rather, various types of protections need to be balanced out differently depending on the circumstances people face today.

For example, consider protections against discrimination for people with physical handicaps. Federal law provides wide anti-discriminatory protections against people with handicaps–but not without limit. A person who is qualified for a job cannot normally be rejected by a potential employer based solely upon their handicap. However, if a person’s handicap by nature makes them unqualified for what a particular job entails (such as, for example, someone with a severe speech impediment applying for a customer service phone line position, or a wheelchair-bound person applying to be a valet at a busy restaurant), an exception is allowed for the employer to ‘discriminate’ and not hire that person. Why? Because to treat anti-discriminatory laws as a blanket statement with no exceptions at all creates an undue burden on the hiring party.

This is not controversial and makes sense to most people. After all, it is quite reasonable that a person who is confined to a wheel-chair should not be hired for a job where the ability to stand, walk, and run are essential to that job—even if the person in question feels discriminated against as a result. Overall, however, laws against discrimination of individuals with special needs do a good job balancing the civil rights of handicapped individuals with the freedom of businesses to hire those they feel are best suited for the job.

So, turning to the current debate over LGBT civil rights with religious freedom of business owners, what criteria might we use to balance out the rights of those who want to participate in same-sex marriage with those of individuals or business owners who hold to the traditional male-female view of marriage?

How do we move forward as a society without falling victim to the zero-sum, winner-take-all scenarios that the current opposing sides in this “culture war” are fighting for?

We would suggest that we as a society simply have find those principles which will take into consideration where different people’s various rights and interests are balanced out in a thoughtful and reasonable way–allowing for the occasional exception to any across-the-board norms we put in place.

To accomplish this, we would like to offer a key concept which might help society weigh the various—and often opposing–interests of all its citizens. It is a concept that would balance all people’s interest in the public marketplace.

It starts by recognizing that there are two broad types of personal involvement in business: High Personal Involvement and Low Personal Involvement.

  • High Personal Involvement entails the processes of personal creativity and that communicates a message about the person.
    Low Personal Involvement entails private transactions, routine processes that require little creativity, etc.
  • High Personal Involvement consists of the creation of artistic, religious, celebratory or communicative goods or services.
    Low Personal Involvement consists of non-artistic, non-religious, non-celebratory or non-communicative goods or services.
  • High Personal Involvement should favor the producer/provider.
    Low Personal Involvement should favor the consumer.

By recognizing this distinction between levels of involvement, we can begin to craft fair and just legislation that protects the genuine civil rights of LGBT individuals in a society where their marriages are legal, and even where they are deemed a protected class under civil rights categories…while also upholding the freedom of religious conviction and freedom of speech for business owners and individuals who are unable to celebrate or personally endorse same-sex marriage.

In the next and final part of this series, we will look at a proposed legislative approach based upon the High/Low Personal Involvement principle that we feel will allow both sides of the marriage debate to co-exist without the constant “culture war” mindset leading to endless frivolous lawsuits and character assassinations that have characterized things thus far.

There IS a better way!

[Click HERE for part 3]

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  1. Thank you for trying to find a way through this intractable mess in our society today. I appreciate your thoughtfulness and creativity. I have three points for you to consider:

    1) Government is in the business of defining marriage primarily to ensure that children are provided for and to settle disputes in the division of property upon the dissolution of a marriage. Would these functions remain the same under your proposal of substituting civil domestic partnerships?

    2) What would you do in relation to claims that same-sex unions inherently harm children who are conceived or brought into that union? Some recent studies have shown that children raised for a time in a same-sex household suffer adverse consequences in terms of completion of school, drug and alcohol use, criminal activity, sexual activity, etc. Could it not be argued that separating a child from the opportunity to grow up with a mother or father in the home (let alone their biological mother or father) is harmful and ought to be prohibited? Granted that same-sex families, just like single-parent families, are preferable to foster care or orphanages. It is one thing to make the best of a bad situation. It is another thing to intentionally create families where the children are disadvantaged from the start.

    3) How is your proposal different from the one being advocated by the RFRA statutes, which stipulates that any government involvement in a discrimination case would be governed by the principles a) that government has a compelling interest to be involved, and b) that government would use the least restrictive way possible to achieve its interest?

    Appreciate your grappling with these questions.


    jm Reply:

    Hi Tom,
    Thanks for the questions and for reading! 🙂 I have nothing to add to what Owen said regarding the first two. I think he hit the nail on the head with both answers.

    As for question 3, yes, the RFRA uses overly vague definitions and does not address what we will look at in the final part of this peice–the nature of the goods/services themselves rather than unhelpfully broad concepts currently being proposed.

    So stay tuned for part 3! 🙂


    Comment by Tom Lambrecht on May 26, 2015 at 4:21 pm

  2. Hello Tom! Thank you for the questions. Allow me to address my own response to those questions, though JM may have different answers than I do.

    In response to #1: We did not clearly define what JM and I meant by that, as it was not something we discussed specifically. For me, there is no functional difference in terms of the state whether it is labelled marriage, civil unions, etc. So, it doesn’t impact the questions of children. The principle impact is a restraint against the government defining the definition that communities must adopt.

    In response to #2: The studies on same-sex parenting are mixed. Furthermore, all studies that I am aware of regarding same-sex parenting suffer from one methodological weakness; none of them directly compare stable opposite-sex and stable same-sex households and the various range of outcomes. In other words, there has not been a direct comparison between families whose only real, significant difference has been the gender of the parents. One study that found no difference relied upon correcting for economic factors between same-sex and opposite-sex parents (men and women married together to be more financially well off). IT also only measured school outcomes. The New Family Structure Study by Mark Regenerus found there is a difference between same-sex and opposite-sex parents in a variety of different outcomes, but the data sample did not have enough stable same-sex households to make any strong comparisons.

    Furthermore, average cultural differences between opposite-sex and same-sex couples may impact the outcomes for children. For instance, same-sex couples are more stigmatized. Also, same-sex partners on average are, I suspect, less likely to maintain traditional moral values (beyond just the gender of sexual partners). As such, it is complicated to truly measure the actual impact of two parents on the same sex, outside of other factors. My hunch is that the main impact of same-sex parenting itself will be the reduced ability for children to relate to people of the opposite gender of their parents; while other social structures (like school) may offer a supplement, this does not always suffice. I suspect if we could truly measure same-sex parenting apart from the other factors, it would be somewhere between single parent households and stable, opposite-sex parents. But we have not had the studies that truly measures that.

    But with that said, I would be careful for using statistical data on childhood outcomes as a basis for making social policy. Children growing up in families in poverty or the brink of poverty have poorer outcomes. People growing up in single parent households have poorer outcomes. If we want to restrict same-sex parents from raising children on the basis of statistical outcomes, then consistency would compel us to do that for children of all households that are less than optimal. Of course, I think that would lead to even worse outcomes from the children. Furthermore, I suspect (though I have not seen a direct study on it) that adoption by same-sex parents would end up with a much better outcome than remaining in foster homes.

    To clarify, I am not saying stable same-sex and stable opposite-sex parenting are equivalent. There is no study that directly studies that in a comprehensive way. But I find no solid grounds based upon the arguments *the government would employ* to exclude same-sex couples from raising children. My intuition say stable, opposites-sex parenting is the ideal, but the goverment does not prevent raising children in less than ideal circumstances (so far as basic needs are met without abuse).

    In response to #3) A couple of points:
    1) The RFRA does not specifically spell out when religious values are protected. “Compelling interest” is a broad category that refers to, principally, protection of constitutional rights. However, since there is a conflict of rights when it comes to religious freedom vs. civil rights to marry, the RFRA does not automatically protect religious freedoms; a case of compelling interest can be made on behalf of honor the civil rights of same-sex couples, just as a compelling case could be made to protect religious freedoms.
    2) Given the ambiguity of the RFRA, LGBT advocates suggest it can and will be used en masse by anti-gay businesses and persons from excluding them in a wide range of activities and ushering in a Jim Crow-like era. While this is sensationalist and has very little basis in current political atmosphere, the ambiguity of the RFRA breeds distrust. By having a more clearly defined criteria, it will create more clarity and opportunity for trust (except for those who want everything).
    3) Likewise, such a criteria can also offer us traditional Christians a place of trust, knowing that we will not be subject to severe violation of our religious freedoms by compelling participation in events that we deem counter to our faith. It offers clarity and an opportunity for trust.
    4) Given the state the United States is in as it tries to balance out various cultural worldviews, the US is becoming increasingly multicultural. A proposal like this does more than address the tension regarding same-sex marriage; it would be a precedent for how to address other conflicts between cultures.

    Thanks for the questions, Tom!



    Comment by Owen on May 26, 2015 at 5:39 pm

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