Gay Marriage and Mrs. Murphy
“What was all that about,” former Hillary Clinton advisor Ann Lewis predicted would be the response of future generations towards current controversies over same-sex “marriage” (SSM) at a May 28 Washington, DC, panel. Unquestioned approval of homosexuality by Lewis and her fellow panelists does not bode well for religious freedom, the topic upon which they spoke at the Newseum’s presentation of “Gay Rights and Religious Freedom: Is Common Ground Possible?”
Homosexuality is the “newest frontier of human rights” following the civil rights movement, Lewis asserted with an oft-invoked analogy largely shared by the panel. “Racial oppression and homophobia” intersections also occurred to homosexual author and activist Jay Michaelson, although he qualified that “sexual orientation is not like race” involvingthe greater horrors of slavery and segregation. Biblical invocations, for example, had served to justify both racism and condemnation of homosexuality. “We always go straight to race” in gay rights discussions, concurred homosexual scholar Jonathan Rauch, but race was an “extreme case” of injustice.Yet historic condemnation of homosexuality by numerous faiths risked “tarring religion with the brush of discrimination.”
“Moral questions, not legal questions” thus took priority in Michaelson’s demand for “equality justice,” a term he preferred to “gay rights.” After “2,500 years of oppression” Michaelson also rejected the sentiment of being “gracious in victory” advocated by some amidst current gay movement societal successes. A “finally transgender inclusive” Employment Non-Discrimination Act (ENDA) will most likely not pass in the current Congress, for example, Michaelson bemoaned in discussing a Lesbian, Gay, Bisexual, and Transgender (LGBT)movement still not fully victorious.
Yet the self-proclaimed “gay marriage” and “religious freedom nut” Rauch and the other panelists noted concerns of homosexuality’s legal approval subverting religious freedom. Assuring that “gay people don’t look like bullies and intolerant” particularly appealed to Rauch as an argument for religious liberty exceptions to laws concerning areas such as wedding services for SSM. “Reasonable religious accommodations” should solve these problems, Rauch suggested, while law professor Robin Fretwell Wilson described such accommodation as a “pathway to marriage equality” negating SSM opposition.
“Brickbats from the LGBT community,” though, have hit the legal expert Marc Stern, a SSM and religious liberties advocate, in response to his advocacy of sexual orientation law religious exemptions.Stern also referenced widespread media misrepresentation of Arizona’s Senate Bill 1062, recently vetoed by Governor Jan Brewer following enormous local and national pressure. As 11 leading legal scholars wrote in an open letter to Brewer, SB 1062’s text merely clarified Arizona’s 1999 Religious Freedom Restoration Act (RFRA) with application to businesses and in lawsuits where the state was not a party. RFRAs in Arizona and other states apply the judicial standard of strict scrutiny for constitutional review to any generally applicable law burdening religion, as the United States Supreme Court had done until 1990. Yet Brewer’s veto occurred even though Arizona antidiscrimination laws “shamefully” do not encompass sexual orientation and transgenderism, Wilson noted.
“Maybe a small exception” for businesses refusing on religious grounds to serve SSM ceremonies would find favor with Michaelson., who all the same rejected exemptions for a large corporation like Hobby Lobby, echoing the open letter arguments that corporation size could place in question legal invocation of personal faith and strengthen state interest. It is “functionally impossible to get an abortion in large swaths of the country” today, Michaelson analogized with his opposition to various abortion restrictions.
Yet “where does the line get drawn?” Michaelson asked with reference to the “discrimination” in the case of Elane Photography. Here a New Mexico photographer had lost her battle before the state supreme court to refuse photographing a lesbian SSM ceremony under a RFRA that did not contain SB 1062’s amendments. “Nobody is suing the church itself” for refusing to participate in SSM, Wilson elaborated, rather religiously-affiliated organizations are “where the action is.” Wilson’s handout showed concentric circles of decreasing SSM religious exemption encompassing houses of worship (center circle) and wedding businesses like Elane Photography (periphery).
Such gradations worried Stern. He noted a dismissed California lawsuit on appeal in which two students sued a Christian school following their expulsion for open lesbianism, a matter in Wilson’s third-tier ring. Stern also questioned whether clergy might face lawsuits for refusing marriage counseling to same-sex couples (Wilson’s second-tier just outside houses of worship), prompting Michaelson’s accusations of “scare tactics.”
While calling SB 1062 “wrong-headed,” Rauch responded to Stern that a “political process of balancing the interests” should resolve religious freedom/LGBT disputes. Thereby “not all states should look alike” in resolving these disputes and no one view would always receive complete satisfaction. Such compromises “are the best you are getting to get” in these disputes today, Rauch argued to Stern, yet analogous religious freedom resolutions have been “right on abortion.”
Dubiously describing natural marriage supporter Brendan Eich’s protest-induced Mozilla resignation as a result of the LGBT movement’s “fringe,” Michaelson also tried to appear conciliatory. Private entities such as the sued California school should have the right to their convictions concerning homosexuality provided they did not accept public funds, Michaelson argued. Catholic Charities of Boston, for example, can still engage in adoption placement even after refusing in 2006 a state demand to include same-sex couples as long as this nonprofit does not utilize public funds. Yet the ubiquitous nature of private-public intersections calls into question Michaelson’s concession, as Wilson noted that 70% of Catholic Charities of Boston funds came from the public.
The 1968 federal Fair Housing Act (FHA) contained the so-called “Mrs. Murphy” Exemption, Wilson analogized again LGBT agendas with racial equality. This FHA exemption covers a dwelling with four or fewer rental units, one of which houses the landlord. FHA envisioned a “hypothetical elderly widow who has converted a portion of her home into a rental apartment to supplement her limited income,” according to one legal analysis. Yet this “exemption does not apply to rental advertising” and “does not apply when a real estate agent is representing the property owner.” Housing and Urban Development additionally “takes the position that the Civil Rights Act of 1866 (yes, 1866) makes it illegal to discriminate based on race,” thereby ruling out a race exemption.
Wilson noted that bigoted individuals discriminating in housing on the basis of religion, race, or other categories are dying out, and predicted a similar trend for homosexuality’s opponents. Indeed, calls to eliminate completely the Mrs. Murphy Exemption have appeared. Thus Wilson and others foresee an ever narrowing circle of religious exemptions for homosexuality’s conscientious objectors, exemptions even more embattled than those concerning abortion. The end result would reduce traditional condemnation of homosexuality as “intrinsically disordered” per the Catholic Church’s catechism to the realm of crazy old aunts in the attic and the like. “Infuriating” was not surprisingly one Catholic Opus Dei supporter’s response to this one-sided panel at the following reception. Traditional faith and morality supporters beware.