Harmonizing LGBT rights and religious liberty is not only right and decent, it is the key to calling a truce in the ongoing culture wars.
Some years ago at the law school at Texas Tech University, I delivered a lecture on the question of whether the teaching of Intelligent Design (ID) in public schools would violate the U.S. Constitution’s Establishment Clause. During the question and answer session afterward, a professor from one of the university’s science departments exclaimed: “Your talk consists of cleverly disguised religious arguments.” To which I immediately replied, “I’m relieved. I was afraid you were going to accuse me of making bad arguments.”
The professor had noted, correctly, that the case made by ID advocates seems to lend support to an understanding of nature that is congenial to certain types of theism. This, by itself, apparently was enough for him to label my legal and philosophical arguments religious, which, in his mind, was equivalent to saying that they were outside the purview of rational assessment. The adjective “religious” served the purpose of alerting the audience that the speaker—yours truly—was not really who he claimed to be—a rational actor offering arguments for one side of a contested public question—but rather, a malevolent poser who was purposely misinforming his audience. For the professor, I was confusing the question of how two different subjects—science, which deals with reason, and religion, which concerns faith—may approach reality, with the question of how two contrary approaches to the same subject—biological evolution—may be legally accommodated in public school science curricula.
Although, as I argue in chapter six of my new book Taking Rites Seriously, I agree with the professor’s rejection of ID, I am convinced that it is a mistake to portray such public disputes as merely conflicts between faith and reason (or “religion” and “science,” or something to that effect). They are more accurately described as clashes between differing understandings of reason, or contrary accounts of the nature of nature.
This is why my chief criticism of ID (which is shared by many theists, by the way) does not get into the thickets of the science, since that is not where the action really is. What I argue is that the leading arguments for ID presuppose a mechanistic philosophy of nature identical to the one embraced by its naturalist critics, and there are many good reasons to reject naturalism without having to also reject the deliverances of modern science, including evolutionary theory. Thus, whether or not a purported scientific theory is “religious,” or any of its rivals “anti-religious,” is simply beside the point in critically assessing it as a theory. One will miss that essential lodestar if one does not first determine what question that theory, or any of its rivals, is trying to answer, and whether that answer is relevant to the metaphysical questions on which the plausibility of rival worldviews (for example, theism versus naturalism) ultimately depends.
A similar kind of clarifying analysis may be applied to other public conflicts over which disagreement falls mostly along religious lines. Consider, for example, how religious liberty claims are often flattened or diminished in cases involving owners of private businesses who refuse to materially cooperate with the performance of a same-sex wedding in jurisdictions that prohibit discrimination based on sexual orientation.
The most well-known cases have concerned a baker in Colorado, a photographer in New Mexico, and a florist in Washington state. In each case, the proprietor declined to do business with a gay or lesbian couple who tried to procure their services for a ceremony or event that celebrated the couple’s wedding. The courts, in every case, ruled in favor of the complainant couple, maintaining that the proprietor, by declining service, discriminated against the customer based on his or her sexual orientation in violation of the jurisdiction’s antidiscrimination law.
Although the owners offered overlapping accounts of what grounds their religious liberty claim—the Constitution’s First Amendment, a state constitutional provision, a state’s version of the federal Religious Freedom Restoration Act—that is not important for the point I am trying to make here. What is important is to see how the courts in these cases missed the actual question over which the owners and their legal adversaries disagree. In all three cases, the defendants—the baker, the photographer, and the florist—argued that they had not in fact violated the antidiscrimination law, since their decision to decline service was based on the nature of the event with which they were being asked to materially cooperate, and not on the sexual orientation of their prospective customers.
Yet, the courts rejected that argument. As the New Mexico Supreme Court asserted in the case brought against the photographer: “When a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.” (The opinions in Colorado (link no longer available) and Washington (link no longer available) employ this same wording, with the latter citing the New Mexico case.)
This reasoning is specious, not because it may not be a reasonable construal of the jurisdiction’s antidiscrimination law, but because it does not take rites seriously. It assumes that a wedding is simply a type of conduct “inextricably tied to sexual orientation.” That may be how some people understand weddings, just as some people think of marriage as “just a piece of paper” or “a good investment.” But for many or most citizens, weddings, like baptisms, bar mitzvahs, burials, and ordinations, are inextricably tied to a transcendent reality to which these events point and by which they are imbued with meaning and significance. For those citizens, an authentic wedding, whether civil or sacramental, marks the beginning of a natural marriage that participates in the eternal law through the natural law. Thus, for the civil law to require that such citizens either materially cooperate with what they believe is a mockery of natural marriage or suffer massive financial penalties seems almost a paradigmatic case of what Thomas Jefferson had in mind when he wrote, “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”
To see why this is so, consider the fictional case of Russell Less, a professional photographer who happens to be a devout Southern Baptist. One of his clients, Aristotle Jones, who is Greek Orthodox, tells Russell that he would like to hire him to photograph the baptism of his newborn son, Socrates. As a Southern Baptist, Russell holds to the doctrine of “believer’s baptism,” and thus does not believe that the baptism of Socrates would be an authentic baptism. In fact, if Socrates were to become a Southern Baptist in his teenage years, Russell would tell him that his infant baptism did not count and that he would have to be baptized again.
Russell tells Aristotle that he would be more than happy to photograph the entire Jones family—either individually or collectively—in or near any body of water, including pools, rivers, streams, oceans, seas, and gushing fire hoses. However, Russell explains, he cannot materially cooperate with the performance of a ceremony (in and near water) that he is convinced is not what Aristotle and his family think it is, an authentic baptism. For Russell, as with Aristotle, baptism is a practice required by his faith because it was commanded by Christ. However, as Russell understands that command, only believers can be baptized, and babies aren’t believers. He admits to Aristotle that other Baptist photographers may have a different opinion on whether they would participate in the ceremony, but he cannot in good conscience do so. Aristotle thanks Russell for his candor and friendship, and a week later finds a Catholic photographer who is more than happy to take pictures at Socrates’ baptism.
Except for its neighborly ending, this story is almost perfectly parallel to the same-sex wedding cases. This is because for most citizens, a baptism, like a wedding, has transcendent significance even if some of the participants, attendees, or observers cannot see it that way (as in the case of a baptism where some of the attendees view it as no more than a perfunctory tradition). A judge who takes rites seriously would easily be able to distinguish Aristotle’s religious beliefs from his liturgical practices, just as the judges in the same-sex wedding cases should have been able to easily distinguish the plaintiffs’ sexual orientation from the ceremonies they believe solemnize their unions.
With those conceptual distinctions in hand, the judges could have reasoned thusly:
“The purpose of this law is to prohibit invidious discrimination. The defendants, in this case, appealing to our state’s religious liberty provisions, claim that they cannot materially cooperate with a same-sex ceremony. Because weddings, like baptisms, confirmations, ordinations, and burials, are central to their theological tradition, it is clear that their choice to decline service is borne of reasonable convictions and not invidious motives. This case is not about a business declining to serve gays and lesbians because of their sexual identity; it is about whether the state may punish and fine citizens who are unwilling to materially cooperate with liturgical events beyond the outer limits of what their faith teaches is permissible.”
To be sure, our public questions become more complicated, and our adversaries more difficult to demonize and caricature, when we take rites seriously. But justice demands nothing less.