My last column is kind of an angry one.
Once again, I’m compelled to write about the collision of religious beliefs and civil rights, and – as has become typical – the tension arises in a case involving marriage equality.
As this story details, the town clerk in the small village of Ledyard, New York, has unilaterally decided that she won’t issue marriage licenses to same-sex couples. So she now requires that all couples (gay and straight) make an appointment for her deputy (who seems to work part-time) to do the job that she’d previously done.
On the surface, this accommodation might look reasonable. The woman gets to honor her own religious beliefs, and now all couples are being treated equally. Everyone has to wait for an appointment. And in general, I support creative means of conflict resolution as long as they neither stigmatize a legally protected class nor cause undue inconvenience. If, say, there were several clerks working different lines in a large city and one objected to issuing marriage licenses to same-gender couples, an unobtrusive switch of clerks would bother no one.
Beyond that kind of practical accommodation, though, allowing this kind of refusal would be a terrible mistake, and one that would sets very dangerous precedent. Consider this example:
State A passes a marriage equality law. The Attorney General’s religious beliefs are offended by the bill, and he decides that all marriage licenses issued to same-sex couples are without legal force. Of course, such an AG would likely be swiftly fired, or in any event overruled by a court. But until that happened, one might expect him to argue that he simply “couldn’t” do otherwise, as same-sex marriages were against God’s law.
But God’s law – whatever it might be in this case, and there’s no clear agreement among religions on this or any other issue – is beside the point. The AG has a civil law responsibility that he’s failing to discharge.
Much further down on the government food chain, the Ledyard clerk, one Rose Marie Belforti, is doing much the same thing. The similarity can be hard to see, because her refusal to comply with the law – unlike the AG’s – can be sidestepped. But in both cases, we have a public official deciding for themselves when and whether to recognize a law of general application. The AG wouldn’t be able to stay in office were he to insist on his own, law-defying interpretation of what God’s law requires; and the result should be no different here. If Belforti couldn’t figure out a way to do this behind the scenes, too bad for her.
And the consequences of allowing religious beliefs to interfere with clear civic responsibilities can’t be limited to the issue of same-sex marriage licenses. What if a clerk didn’t want to marry two people who’d been divorced? Who’d had sex before marriage? And what would those defending Ms. Belforti say about a judge who granted men, but not women, a unilateral divorce because of his belief that that Sharia law required that interpretation?
We expect judges to follow the prevailing law. We have the right to expect clerks to do the same.
I could respect Ms. Belforti if, like several other clerks with religious objections to same-sex marriages, she resigned from her job. But I have nothing but contempt for the rhetoric being put forward by the likes of Maggie Gallagher and Robbie George. Read this article, which details how the pair is trying to turn back marriage equality by appealing openly to the idea that religion should take precedence over equality. Gallagher likens New York state’s insistence on having its laws followed in the clerk cases to the dictates of Caesar, “forgetting” that the democratically elected legislature passed the marriage equality law. But the reference to this dictator is a way of making her point about the supposed religious persecutions.
George, co-author of the much-downloaded, but intellectually dishonest, article “What is Marriage?,” continues to rail against schools that teach about the existence of (let alone the positive results linked to) families headed by gay and lesbian parents. It’s just too bad for parents who don’t want their children “indoctrinated” into this world, he says.
Worse, he “loathes” the “bad faith” of our “strategy” of demonizing people like Belforti by deploying the “weapons” of anti-discrimination law. But to insist that validly enacted laws, like New York’s, be interpreted in a way that favors no religion over another is only to follow the rules of democracy itself. George and Gallagher are so sure of their own (rigidly Catholic) version of God that they fail to understand that the best way to respect religion is to insist on its separation from the civil, legal sphere.
For once religion is allowed to set the rules, there’s no guarantee that the faith chosen will be one either of them would endorse. It might even be Muslim.
I can’t end this column without a last goodbye to my faithful readers (some of whom I know by user name; others of whom simply read without weighing in). I’d love for you to follow me over to my own site, Word in Edgewise, where I promise to keep up the fight. (And I might soon be blogging for another site; you’ll have to go to WiE to find out if and where.) I hope to see some of you tonight! And a fond farewell to JV and JW. Thanks to both of you. Excelsior!
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law. He has edited and contributed to a book on “hot” legal and social issues, and just taped a show for The American Law Journal on the legal rights of unmarried cohabitants (gay and straight). It will be available for viewing on this website by late October. Follow him on Facebook and Twitter.