Whose rights?

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Anyone watching the Oscars last night ought to conclude that the fight for gay marriage rights is not going away, nor is it likely to be amenable to some kind of “common ground” solution. Between the acceptance speeches of Dustin Lance Black and Sean Penn, compromise is not in the air. This struggle, in the manner of previous struggles for equal rights in American society, will sooner or later prevail.

The question is: To what extent will the establishment of equal rights in this case limit the discretion of religious institutions to maintain their faith-based commitment to discriminate? Constitutionally, the Free Exercise clause does not entitle such institutions to act however they choose. Mormons were not permitted to practice plural marriage. And Bob Jones University was not permitted to retain its 501 (c) (3) tax exemption so long as it barred interracial dating. In both cases, the institutions in question claimed that they were acting under divine mandate. Too bad, said the Supreme Court. So let’s say a case is brought against a religious college that bars same-sex dating. On what basis could the court decide that such prejudice is a legit expression of religious freedom while racial prejudice is not?

Well meaning as it is, the proposal advanced by David Blankenhorn and Jonathan
Rauch in a NYT op-ed yesterday seems to me a half-way house that will have trouble standing. But the cry of distress from Rod Dreher about the “fast erosion of religious liberty in America” paints with far too broad a brush. It’s not religious liberty that is fast eroding, but one big social norm. What we’re in for, no doubt, is extended legal trench warfare over what is and is not permissible (or tax-free) anti-gay discrimination by religious bodies. The outcome of every battle will depend, as usual, by who’s got five votes on the court.

  • Constitutionally, the Free Exercise clause does not entitle such institutions to act however they choose.>
    For the first 150 years, religions could do what they pleased if the behavior did not subvert good order, or certain biblical commands.