Box Turtle Bulletin

Religious Freedom and the Destruction of Civil Marriage

Two and a half years ago, I offered up this ridiculous, extreme scenario as I tried to puzzle out just how far the advocates of “religious liberty” want to take us:

Suppose an on-duty police officer sees a known homosexual getting stomped to death in an alley by two men shouting, “Die, faggot, die!”  He does nothing to stop it, and he lets the thugs escape, because he believes in Leviticus 20:13:

If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death. Their blood shall be upon them.

His religious beliefs make it impossible for him to intefere with what he views as God’s will, or even to hold the assailants responsible.

Should this officer be penalized?  Or would that violate his religious freedom?

That’s not ridiculous or extreme anymore. Kansas is right now passing a law that could make this a reality.

Kansas House Bill No. 2453 (already passed by the state House and on its way to the Republican Senate and Governor) begins like this:

Section 1. Notwithstanding any other provision of law, no individual  or religious entity shall be required by any governmental entity to do any  of the following, if it would be contrary to the sincerely held religious  beliefs of the individual or religious entity regarding sex or gender:

(a) Provide any services, accommodations, advantages, facilities,  goods, or privileges; provide counseling, adoption, foster care and other  social services; or provide employment or employment benefits, related to,  or related to the celebration of, any marriage, domestic partnership, civil  union or similar arrangement;

(b) solemnize any marriage, domestic partnership, civil union or  similar arrangement; or

(c) treat any marriage, domestic partnership, civil union or similar  arrangement as valid.

And later in Section 2, police and other government employees are explicitly exempted:

(d) If an individual employed by a governmental entity or other non religious entity invokes any of the protections provided by section I, and amendments thereto, as a basis for declining to provide a lawful service that is otherwise consistent with the entity’s duties or policies, the individual’s employer, in directing the performance of such service, shall either promptly provide another employee to provide such service, or shall otherwise ensure that the requested service is provided, if it can be done without undue hardship to the employer. 

That bit I emphasized is a great loophole. It means if you simply change my scenario from a gay individual to a gay couple, then police officers could invoke their religious right to let the bashing continue, and then the station would have to send out another officer — unless this would cause “undue hardship to the employer,” in which case…sorry!

(Actually, as Mark Joseph Stern points out in Slate, it may not even need to be a couple; it could be an individual as long as the officer perceives that individual as celebrating a — well, not necessarily a marriage, but even just a “similar arrangement” to marriage.)

I have to hope the bill’s authors never intended this, or even better, that I’m misinterpreting the words that appear on the page. Perhaps the gay bashing would be such clear danger to public safety that it would override this new law. But the major effect, the simpler, obviously deliberate effect, is this:

No one in Kansas will have to recognize a same-sex marriage as valid. No one. Which leads to an inevitable conclusion:

Either these religious activists are frauds who don’t give a damn about religious liberty, or they’re on a path to destroying civil marriage for everyone.

Let’s take up the fraud question first. If religious liberty is such an issue, why does the bill focus on the gender of married persons — in other words, why only carve out a religious exemption for same-sex marriage? Some religions don’t recognize the unions of those who have divorced and remarried. Or who married outside the faith. Why not include those as exemptions, too? Basically, this Kansas law privileges some religious beliefs above others, which not only raises constitutional questions, but also signals that its advocates don’t care about religious liberty in general, but only leap into action when it comes to dealing with those homosexual people. They aren’t champions of religious freedom at all. They’re just frauds.

Unless I’m judging them too harshly, and this is just a first step. Unless they’re really not motivated by anti-gay animus, and want to create this exemption for all sincerely-held religious beliefs.

In that case we face the complete destruction of civil marriage. You can always find some religious reason not to recognize a union. I listed a few above but it’s easy to come up with more. The couple’s using birth control; the man is permanently sexually incapacitated; one partner is gold-digger and married under false pretenses; the bride was not a virgin and should have been stoned the next day; the bride is a widow, and should have only married her husband’s brother.

These reasons don’t have to be good or rational or even traditional. They just have to be sincere. And what an incentive to put on a show of sincerity. Employers could calculate all the money they’d save by refusing spousal benefits to their divorced/remarried staff and pow! they have a new sincere religious belief. Hell, sudden conversions happen all the time. Sudden conversions are traditionally a cause for joy.

Once that happens, the legal status of marriage means nothing. No individual, privately or publicly employed, will be legally obliged to acknowledge married couples as married. We’ll have nothing but a loophole so big it ravages marital law to the point where nothing is left.

But let me pull back from this slippery-slope argument. Instead of spinning wild-yet-perfectly-plausible scenarios, let’s put the burden on the people pushing these laws. Let’s hammer them with a few simple questions:

If this is about the principle of religious freedom, why the narrow focus on same-sex marriage?

Do you believe all sincere religious beliefs about marriage should be likewise privileged (and if not, why not)?

Do you a have a limit, a line beyond which religious beliefs no longer supersede law (and if so, where is it and why)?

I don’t mean these as rhetorical questions. They may have answers, good ones, but I haven’t seen them articulated. And in their absence, we see only two choices: either these religious freedom advocates are frauds, or they’re initiating the destruction of civil marriage.