Law, Religious Change, and Same-sex Marriage

We often talk about law and religion as though law is dynamic and religion is static. Religious believers are inclined to see their faith in terms of eternal and unchangeable truths. Non-believers have nothing invested in seeing religion in eternal or unchanging terms, but they often lack the interest and sophistication to understand how the mechanisms of religious change actually work. Hence, we get narratives in which law regulates religious believers or in which law accommodates religious believers and the like. Religion is taken as given, and we make deliberate choices about law.

In my own research one of the questions that has interested me is the way in which the law can drive religious change. Religious traditions are in a constant process of self-interpretation and adaptation to the world around them. The law is often an important part of that world and can drive religious change.

In an admirably irenic column in Sunday’s NYT, William Eskridge touches on this issue, highlighting the way in which a number of mainline Protestant religions have reinterpreted their theology to bless same-sex unions, suggesting that religion is not necessarily the implacable foe of LGBT rights. The Supreme Court will hear oral arguments on same-sex marriage on Tuesday, and if, as I think is very likely, the justices find a constitutional right to same-sex marriage, what will be the effect on religious beliefs?

Eskridge uses the example of race, pointing toward the way in which racist theologies were deployed to justify slavery and segregation. He gets some of the historical details wrong, but his basic point is valid. He then draws the analogy to teachings against miscegenation and religious theologies condemning inter-racial marriage. Such theologies have all but disappeared from American Christianity or been shunted to the margins. (My focus here is on Christianity simply because I feel more confident that I understand it.) The implication of Eskridge’s argument is that conservative religious opposition to same-sex marriage might similarly be abandoned.

I think that the analogy to inter-racial marriage is inapt, but it does reveal something of the dynamic that I think will occur in a world where same-sex marriage is constitutionally required. I start with the premise that anti-miscegenation theologies were motivated mainly by racial animus. They were not deeply rooted in Christian theologies about marriage. Jettisoning them actually did not require much reinterpretation of theologies of marriage.

Same-sex marriage is different. Christian theologies of marriage that place heterosexual union at the center of marriage are not motivated by animus towards homosexuality in the same way that anti-miscegenation theologies were motivated by racial animus. This is not to deny the existence of a great deal of animus towards homosexuality and theologies that justify that animus. My point is simply that defining marriage as a sanctified heterosexual union is not the main place where this animus manifests itself. Christian theologians did not set out to construct heterosexual theologies of marriage in order to exclude gays and lesbians from marriage. In contrast, Christian theologians did construct justifications for prohibitions on mixed race marriages because they were motivated by animus toward blacks.

Accordingly, I suspect that theologies justifying traditional marriage will prove far more resilient than have theologies justifying segregation or condemning mixed-race marriages. I expect that a number of religious traditions will come to bless same-sex marriage, especially because American Protestantism has tended towards individualism with little emphasis on sacramental theology, which means that theologies of marriage – as opposed to theologies of individual salvation – tend to be less central and therefore more easily changed. Still, I don’t think that anything like the widespread collapse of racist theologies of marriage will happen.

What will happen, I suspect, is that religious communities that maintain theological opposition to same-sex marriage will feel enormous pressure to demonstrate that their theologies are not rooted in animus towards homosexuality. Rather than blessing same-sex unions, however, what I suspect will happen is that these traditions will jettison or reinterpret those aspects of their theology and practices that are deeply rooted in animus towards homosexuality. And that, I think, will be all for the best.

Around the Web This Week

Some interesting law and religion stories from around the web this week:

Papademetriou, “Render unto the Sultan”

This April, Oxford University Press will release “Render unto the Sultan: Power, Authority, and the Greek Orthodox Church in the Early Ottoman Centuries” by Tom Papademetriou (Richard Stockton College, New Jersey).  The publisher’s description follows:

Render Unto the SultanThe received wisdom about the nature of the Greek Orthodox Church in the Ottoman Empire is that Sultan Mehmed II reestablished the Patriarchate of Constantinople as both a political and a religious authority to govern the post-Byzantine Greek community. However, relations between the Church hierarchy and Turkish masters extend further back in history, and closer scrutiny of these relations reveals that the Church hierarchy in Anatolia had long experience dealing with Turkish emirs by focusing on economic arrangements. Decried as scandalous, these arrangements became the modus vivendi for bishops in the Turkish emirates.

Primarily concerned with the economic arrangements between the Ottoman state and the institution of the Greek Orthodox Church from the mid-fifteenth to the sixteenth century,Render Unto the Sultan argues that the Ottoman state considered the Greek Orthodox ecclesiastical hierarchy primarily as tax farmers (multezim) for cash income derived from the church’s widespread holdings. The Ottoman state granted individuals the right to take their positions as hierarchs in return for yearly payments to the state. Relying on members of the Greek economic elite (archons) to purchase the ecclesiastical tax farm (iltizam), hierarchical positions became subject to the same forces of competition that other Ottoman administrative offices faced. This led to colorful episodes and multiple challenges to ecclesiastical authority throughout Ottoman lands.

Tom Papademetriou demonstrates that minority communities and institutions in the Ottoman Empire, up to now, have been considered either from within the community, or from outside, from the Ottoman perspective. This new approach allows us to consider internal Greek Orthodox communal concerns, but from within the larger Ottoman social and economic context.

Render Unto the Sultan challenges the long established concept of the ‘Millet System’, the historical model in which the religious leader served both a civil as well as a religious authority. From the Ottoman state’s perspective, the hierarchy was there to serve the religious and economic function rather than the political one.

Hansen, “Christian-Muslim Relations in Egypt”

This June, I.B. Tauris Press will release “Christian-Muslim Relations in Egypt: Politics, Society, and Interfaith Encounters” by Henrik Lindberg Hansen (University of London).  The publisher’s description follows:

The subject of Christian-Muslim relations in the Middle East and indeed in the West attracts much academic and media attention. Nowhere is this more the case than in Egypt, which has the largest Christian community in the Middle East, estimated at 6-10 per cent of the national population. Henrik Lindberg Hansen analyzes this relationship, offering an examination of the nature and role of religious dialogue in Egyptian society. Taking three main religious organizations and institutions in Egypt (namely the Azhar University, the Muslim Brotherhood and the Coptic Orthodox Church), Hansen argues that religious dialogue involves a close examination of societal relations, and how these are understood and approached. Including analysis of the occasions of violence against Christian communities in 2011 and the fall of the Muslim Brotherhood from power in 2013, Hansen provides a wide-ranging exploration of the importance of religion in Egyptian society and everyday encounters with a religious other . This makes his book vital for researchers of both religious minorities in the Middle East and interfaith dialogue in a wider context.”

“Catholic Legal Theory: Aspirations, Challenges, and Hopes” at Villanova Law School

I’m delighted to be participating over the next couple of days in this year’s John F. Scarpa Conference on Law, Politics, and Culture at Villanova Law School: Catholic Legal Theory: Aspirations, Challenges, and Hopes. My subject is “Tradition and Catholic Legal Theory.”

Sacks, “Not In God’s Name: Confronting Religious Violence”

In June, Mulholland Books will release “Not In God’s Name: Confronting Religious Violence” by Rabbi Jonathan Sacks (former Chief Rabbi of the United Hebrew Congregations of the Commonwealth). The publisher’s description follows:

Despite predictions of continuing secularization, the twenty-first century has witnessed a surge of religious extremism and violence in the name of God. In this powerful and timely book, Jonathan Sacks explores the roots of violence and its relationship to religion, focusing on the historic tensions between the three Abrahamic faiths, Judaism, Christianity and Islam.

Drawing on arguments from evolutionary psychology, game theory, history, philosophy, ethics and theology, Sacks shows how a tendency to violence can subvert even the most compassionate of religions.

Whilst dismissing the claim that religion is intrinsically a cause of violence, Sacks argues that theology must become part of the solution if it is not to remain at the heart of the problem. Through a close reading of key Biblical texts at the heart of the Abrahamic faiths, Sacks challenges those who kill in the name of the God of life, wage war in the name of the God of peace, hate in the name of the God of love, and practice cruelty in the name of the God of compassion.

Olsson, “Preaching Islamic Revival”

In June, I.B.Tauris will release “Preaching Islamic Revival: Amr Khaled, Mass Media and Social Change in Egypt” by Susanne Olsson (Stockholm University, Sweden). The publisher’s description follows:

Amr Khaled is an Egyptian Muslim activist and television preacher based in Egypt who encourages both social commitment and individual self-fulfilment. Chosen by Time Magazine as one of the world’s 100 most influential people, his prominence in the Arabic-speaking world is unparalleled. During the Mubarak era, his message seemed for the most part apolitical, but after the events of January 2011, he started using more explicitly political language. Susanne Olsson examines the differences between Amr Khaled’s pre-revolutionary and post-revolutionary messages and looking in-depth at how he deals with the concepts of Islam and modernity. By examining issues such as Amr Khaled’s use of mass media, his views on gender role and the nature of political and religious rule, Susanne Olsson offers a book which will appeal to those interested in the changes that Egypt has experienced over the last century.

The Empirical Irony of the Conflict Between Antidiscrimination and Religious Freedom

I like markets. I think that on the whole commerce tends to make us better people, that trade is one of the best mechanisms of cooperation in a pluralistic society, and that participation in the market will generally increase our material well-being. Hence, insuring that everyone has the ability to participate in the market is important. Generally, the best way to insure such participation is to create institutions that keep markets competitive and remove barriers to entry. Contract and the search for new customers will do the rest.

I am not, however, a principled libertarian or anarcho-capitalist or the like. At times history, habits, and other institutions will result in a market from which some people are systematically excluded. I don’t think that this is an inevitable result of markets, and I think that contract and competition do a better job of insuring access than most folks (perhaps especially law professors) recognize. Still, no human institution or set of practices is perfect, and this is definitely true of commerce. When such systematic exclusion occurs, I think that antidiscrimination laws are justified to insure access. In a pluralistic society, however, I don’t think that the case for such laws is particularly strong if we justify them on grounds other than access. Living in a world in which others engage in acts that are an affront to one’s dignity or manifest unsavory thoughts strikes me as part and parcel of the liberal ideal, and I don’t think that such things should be made into legal wrongs, except in extreme cases like IIED torts.

Given my framework, I think that there is a deep irony in the current debates over religious exemptions and antidiscrimination laws covering homosexuality. First, I think that such antidiscrimination laws are justified where there are threats to the ability of gay citizens to participate fully and meaningfully in the market. The strength of that justification, however, is empirically contingent in my book. In places where there is widespread animosity towards homosexuality, the case for such laws is fairly strong. In places where animosity towards homosexuality is confined to a small subset of the population, the case for antidiscrimination laws is weaker.

I also think that antidiscrimination laws can burden religious exercise substantially. I actually don’t think that the wedding cake baker or the wedding photography facts are particularly hard cases. There are lots of people who believe that the celebration of gay marriage is wrong, sinful, and blasphemous. It is pretty understandable that they would regard participating in such a wedding as sinful. One may disagree with their moral or theological position (I do), but I don’t think that it is insincere, pretextual, or that the burden placed upon them is trivial. Hence, regardless of the doctrinal rout by which one gets there – RFRA, state constitutions, statutory carve outs, what have you – I think that exemptions in such cases make sense. Where granting such exemptions doesn’t meaningfully threaten access to the market, fining the baker or the photographer strikes me as needlessly punitive and vindictive.

However, I think that the case for religious exemptions from antidiscrimination laws is also empirically contingent. It is contingent in two ways. First, given the religious beliefs that command a following in society, are there a lot of belief systems that are going to label providing services to gay customers or employing gay workers as impermissibly sinful? Second, are there a lot of believers in these creeds? I think that there is a lot of mindless animosity towards homosexuality and some of that mindless animosity drives religious beliefs. There is less of this, however, than many secular liberals assume. I don’t think, for example, that most conservative religious believers think that serving gay customers or having gay employees is sinful, even if they believe that homosexuality is sinful. Rather, I think that the desire for exemptions is largely about marriages, weddings, and perhaps family formation (IVF or adoption). And even there, I don’t think that there are very many people – including conservative religious believers – that would actually use such exemptions.

I may be wrong about both of those conclusions, and in some places I am pretty confident that I am wrong. And this leads to the irony. In places where anti-discrimination laws are most justified we are the least likely to get them through the political process. Those are also the places where granting broad religious exemptions is most likely going to undermine antidiscrimination laws if they are enacted. On the other hand, those places where there is the strongest support for antidiscrimination laws are also the places where there is the least need for such laws and where the case against granting religious exemptions is the weakest. Yet these are also the places where we are least likely to see religious exemptions from those laws.

All of this makes me pretty depressed. The incentives, it seems to me, is for the politics to become the most toxic and destructive for both sides depending on the region. In crude terms, I think that in blue states conservative religious objectors will likely be dealt with harshly and punitively. In red states, I think that there is a real danger that in some places homosexuals will lack the ability to fully and meaningfully participate in the market.

There are, however, two things that give me hope. The first and greatest source of hope is commerce itself. I think that interactions and incentives in the market are likely to cool animosity and open opportunities. The fact that most people don’t care a great deal about these debates and would rather get on with making a living is deeply heartening. The other source of optimism for me is Utah, where the state recently expanded antidiscrimination protection for LGBT folks, while carving out surprisingly narrow exemptions for religion. Utah is not as encouraging as the market itself, however, because the law punted on most of the hardest issues. Still it suggests that the rhetorical and legal tailspin that seems most likely to me in ideologically homogenous spaces isn’t inevitable.

The (Anticipated) Depth of Progressive Skepticism Toward Religious Freedom

Nate writes: “I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.”

I see things a bit differently. But at least part of the difference may be the result of definitional uncertainties. I’m not sure what Nate means to include within the compass of antidiscrimination laws. I’m more certain of the sorts of harms to personal dignity that antidiscrimination scholars do see at the heart of those laws. And I’m even more certain of what Nate rightly describes as the ambitions of Justice Kennedy, especially in the jurisprudence of dignity that has animated his opinions over the last 25 years or so (from substantive due process all the way to state sovereign immunity). As I put it in this essay (footnotes omitted):

The issue of symbolic or “dignitarian” harm is particularly problematic. If perceived affronts or injuries to one’s personal dignity constitute a “significant” or “material” harm to a third party, then it is difficult to see how many permissive religious accommodations could survive. Laws reflect morally and politically charged messages. Whether the subject is education, public health, drugs, sexuality, commerce, prisons, insurance, the environment, or the military, laws embody particular moral convictions and impose, even if tacitly, particular moral views on those subject to them. Religious accommodations are decisions by the government to permit limited dissent from these moral messages. In accommodating religious objectors, the state might be perceived not merely to authorize limited disagreement with the law, but to countenance disrespect for the moral views underlying it or even for the moral dignity of those who are its intended beneficiaries. But if the state comes to have powerful legal interests in remedying symbolic or dignitarian offenses, then that may well render many permissive religious accommodations illegal….

A leading antidiscrimination scholar has likewise noted that the prevention of harms to “dignity” and the stigmatization of discrimination are two of the three “canonical” functions of antidiscrimination laws generally. Religious accommodations, it is said, have the power to “stigmatize and demean” those who disagree with the religious claimant’s dissenting position on these matters, even when such objections are “not stated explicitly.” The feeling of being “judged” by those who raise religious objections to certain conduct, and the indignity of knowing that the state has countenanced that judgment by permitting a religious accommodation, may themselves be independent harms….

The government’s vindication of third-party dignitary harms has the potential to destroy religious accommodation. The core function of religious accommodations, again, is to authorize limited, but sometimes socially powerful and politically controversial, dissent from the law’s moral messages. There is an important difference between dissent from a law’s moral message and the denigration or vilification of the law’s intended beneficiaries. “Hate the sin, love the sinner,” is the Christian aphorism sometimes used to express this distinction, but it has proved elusive and generally unpersuasive (or worse) to those whose dignity is felt to be injured by claims for religious accommodations. A government that assumes the power to confer dignity on individuals may also subject itself to legal claims by individuals whose dignity has been harmed as the deprivation of an entitlement. And there is reason to worry that the legal conferral of dignity is expanding, as the Supreme Court increasingly justifies its constitutional jurisprudence based on ever-thickening concepts of human dignity. Lurking just beneath these dignitarian clashes are bottomless mysteries concerning the foundations of human identity—religion or sex? higher duty or worldly satisfaction?—that, one may anxiously hope, neither the Supreme Court nor any other government institution will ever assume the power to resolve.

Perhaps in the end the issue is not so much “progressive skepticism” toward religious freedom as “progressive aspirations” for antidiscrimination law–not the winning back of progressives to the cause of religious liberty (or even to its toleration), but the damage to religious liberty that the ever-expanding scope of antidiscrimination law portends.

Marlin, “Christian Persecutions in the Middle East”

This June, St. Augustine’s Press will release “Christian Persecutions in the Middle East: A 21st Century Tragedy” by George J. Marlin (Aid to the Church in Need-USA).  The publisher’s description follows:

Christian PersecutionsEven before ISIS launched its ultra-violent campaign targeting Iraqi Christians in the summer of 2014, Pope Francis proclaimed that the current wave of Christian persecution in the Middle East is worse than the suffering inflicted on believers in the centuries of the early Church. Since the Arab Spring and the start of the civil war in Syria in 2011, which have thrown the region into utter chaos, Muslim extremists have killed thousands of Christians every year, while destroying and desecrating countless churches. Christian communities in Syria, Iraq, and Egypt have been hardest hit.

In his new book, author and political commentator George J. Marlin, chairman of Aid to the Church in Need-USA – an agency under the guidance of the Pope that supports the persecuted and suffering Church around the world – describes the sharp rise in Christian persecution in the Middle East. After brief narratives on the rise of Christianity, Islam, and terrorism in the Middle East, Marlin documents country by country, acts of twenty-first century Christian persecution that is nearing a bloody climax that could produce the unthinkable: a Middle East without Christians and the destruction of an ancient patrimony that has been a vital link to the very birth of Christianity.