An Inconvenient Federalism: Marriage and Religious Liberty

Cato’s Jonathan Adler, writing in Reason, gives a more eloquent version of the argument I’ve advanced in the past about the perils of tossing federalism aside on the marriage issue.  

“The arguments for holding Proposition 8 unconstitutional do not seek to vindicate a “right to marry” so much as they seek to alter the definition of what constitutes a marriage in the first place. Marriage has been understood to constitute the union of one man and one woman through most of human history… Many of us find this to be an unpersuasive justification for denying state recognition of same-sex couples, but this is not a sufficient basis to render such policies unconstitutional. Federalism requires that state governments are allowed to adopt unsound policies. Indeed, it is only by allowing a diversity of policy choices to be made that we can discover the mix of policies that best protect individual liberty and facilitate the pursuit of happiness.”

Adler notes the historical precedence of state authority over the definitions of family law, and then moves on to the tactical problem:

“Advocates of same-sex marriage, myself included, believe it is proper to expand the traditional definition of marriage to include same-sex couples. Insofar as the state is in the business of licensing and recognizing marriages, it is prudent, wise, and just to recognize that two people of the same sex are just as capable of creating an enduring, committed relationship and providing for the care and nurturing of children as many heterosexual couples. But this does not mean a state’s refusal to take this step violates the Constitution. Not every policy that is unwise or even unjust is unconstitutional.”

This reminds me of Justice Thomas’s position on Lawrence, which used to be on my wall in the Senate offices. The decision to stop the ongoing conversation of democracy and assert a nationwide standard is always tempting for those who view the courts as an avenue to getting the result they want ahead of the trendlines of culture, but I am in favor of trusting the people in these matters to decide these issues for themselves.

The larger danger is the inevitable clash between religious liberty and a newly required and nationally legitimized approach to same sex marriage. The Illinois proposal currently being considered by their state legislature is a perfect example: one which would require religious associations to essentially give up their daily activity of evangelism, retreat from public life, and sacrifice their property rights if they are viewed as holdouts on the wrong side of the cultural trend. It is a perfect encapsulation of the thorny religious liberty issues which will inevitably be litigated over the coming decade – namely, how much the state can demand of churches, synagogues, and mosques to bend to the new law likely imposed by the Supreme Court. Let me draw your attention to page 5

“Nothing in this Act shall be construed to require a religious organization as defined in paragraph (1) of this subsection (a-10) to make available a parish hall or other religious facility on the premises of a church, mosque, synagogue, temple, or other house of worship for solemnization or celebration of a marriage that is in violation of the religious organization’s religious beliefs, provided that: (A) the religious facility is primarily used by members of the parish or congregation for worship and other religious purposes; (B) for solemnization and celebration of marriages, the religious organization generally restricts use of the religious facility to its members and opens the facility only occasionally to non-members on an unpaid basis; and (C) the religious organization does not make the religious facility available to the general public for rental or use for which a rental fee or other compensation is required or for which public funding or other public benefit is received.”

There are a host of problems in this “provided that” section, nearly all of which are bent against the ability of religious institutions to evangelize – they must close their doors to outsiders entirely in order to abide by this rule. Regarding (A): how do we assess a facility’s role as “primarily” to serve members of the parish or congregation? Similar to the challenge in the contraception mandate situation, where there’s been concern federal representatives would have to survey students at Catholic schools to see how many were actually Catholic, this would essentially eliminate whole swathes of church activity. As for (B): the vast number of protestant institutions, where membership is often more nebulous, rent their facilities to non-members for use in weddings, a not insignificant source of income (and a not insignificant cost for the facility). The combination of (A) and (C) would simply eliminate the bulk of functional church activity. Non-churchgoers may think of a religious institution as a Sabbath-focused entity – in reality, the five days a week classes, day schools, counseling, fellowship hall scout meetings, soup kitchens and the like are the primary focus of most active denominations, featuring the prevalence of non-members and the active participation of many other non-profit groups, which will now have to choose between receiving public benefit (does this include tax treatment?) and their use of church facilities.

But remember, we’re not forcing the churches to do anything. They just need to understand that functionally, from the perspective of the state, they will eventually have to choose: either they are public facilities which can be used by all, or they can lose their tax status. Churches and other religious groups will have to resolve their willingness to engage legal protections and prepare to lose their tax status (as we’ve already seen in New Jersey) in anticipation of the inevitable lawsuits, and may wish to incorporate their schools and attendant organizations in a different manner so as to create legal firewalls. It is a libertarian pipe dream that such clashes with churches and religious institutions are in any way avoidable.

In a proper federalist system, states would work according to the laboratories of democracy model: they would see how this approach plays out in Maryland and Maine over the coming years, and alter their laws accordingly to protect religious organizations, businesses, mosques and churches, and prevent community clashes as best possible. State laws differ dramatically, and for a reason. I expect the Court to prevent such an approach: instead of allowing the people to decide a contentious issue of rights, love, and childrearing, they will almost certainly rip this away from the people.

They should trust the people more. If marriage is to be redefined, it ought to be by the American people, not unelected judges. We’ve seen the clashes already in California on this point, but by taking the issue national, the Court will sow social discord in significant ways with yet another enormous expansion of the Equal Protection standard, one which will inevitably set it up for future difficulties as plaintiffs take this new path to a logical conclusion. The reaction will not be as long-term as Roe, but it will be more divisive than the elites in media and politics expect, as any issue is where a decision is forced rather than allowing the citizenry to come around to the idea, where they view such matters as the working of legitimate democracy.

Ultimately, this debate is likely to do more damage to the public square than it ever should have in a system which understood the importance of balance, patience, and faith in the federalist approach that served this nation so well in the past. Trust in government is already at its nadir, and Supreme Court approval is near record low. Perhaps this is because the people understand they no longer direct the course of legitimate government that is supposed to serve their interests, and that on issues of life, death, and love, the will of a far-off power is now regularly imposed on them.

As Ronald Reagan noted, the Founders recognized the importance of “sovereign states, not mere administrative districts for the federal government”, and “regarded the central government’s responsibility as that of providing national security, protecting our democratic freedoms, and limiting the government’s intrusion in our lives — in sum, the protection of life, liberty and the pursuit of happiness. They never envisioned vast agencies in Washington telling our farmers what to plant, our teachers what to teach, our industries what to build… They believed in keeping government as close as possible to the people.” That principle is an inherently conservative one, a wise one, and should not be dismissed so quickly simple to achieve another political end.

  1. Chris Campion

    I’m still not sure why the state, the gov’t, in any form, is involved in sanctioning, approving, defining, re-defining, adjudicating, take your pick here, in something that two consensual and free adults wish to do – which is to spend their lives together.

    It has nothing to do with the state.  It has to do with individuals, and last I heard, they were free to do as they pleased.  All of these discussions surround a political football that helps politicians stay in office, or get elected, but does quite literally nothing out in the real world.  The “benefits” of marriage are already available via contract, and as others have stated, it seems as if the desired goal is the ability to use the word “marriage” to define a relationship.

    I guess if we’re looking for Leviathan to nod approvingly at our choices, this would be the path we’d choose.  I’d rather Leviathan had no eyes into what I do in my private life, nor the lives of others.

  2. BrentB67

    I think this is the best post I’ve read to date that explains that the SSM debate is ultimately going to be more about the 1st Amendment than we, or at least me, realized.

  3. KC Mulville

    The only distinction I’d add is that marriage might be a state-to-state issue; but religious liberty isn’t.

  4. katievs

    Insofar as the state is in the business of licensing and recognizing marriages, it is prudent, wise, and just to recognize that two people of the same sex are just as capable of creating an enduring, committed relationship and providing for the care and nurturing of children as many heterosexual couples. But this does not mean a state’s refusal to take this step violates the Constitution. Not every policy that is unwise or even unjust is unconstitutional.

    What two people of the same sex are not capable of “creating” is a marriage.  Their relationship does not bring together the two halves of the human whole.  Their relationship does not give rise to new human life.  It is not the moral equivalent of marriage.  To use the law to say it is doesn’t “expand marriage”, it abolishes it as a unique reality and the natural foundation of society.

    No human political body has the authority to “redefine” or “redesign” human nature.  To attempt it is to commit injustice of the most radical kind.  It’s a kind of blasphemy.

    No attempts to mitigate the damage by crafting religious liberty clauses will avail to change that basic reality.

  5. Jojo

    Marriage used to have some sort of generally understood meaning, aside from religion.  It confirmed that a man and woman were committed to spending their lives together and jointly raising their children.  As a thousand others have said, marriage law did not create this meaning, but only recognize it.

    My objection is not religious.  It’s common sense, for me.  Perhaps legalized gay marriage will not directly impact me, but I suspect that I will have to keep truth in the closet much as homosexuals used to.  Indirectly I think all of society will suffer by pretending men and women are interchangeable and it does not take one of each to make a child.  If that battle has been lost, carving out a narrow exception for sufficiently-religious-as-defined-by-the-state people is a losing rearguard action.

  6. KC Mulville

    I lied – I have another distinction to add.

    [...] just to recognize that two people of the same sex are just as capable of creating an enduring, committed relationship and providing for the care and nurturing of children as many heterosexual couples

    Love, and child-rearing were listed as something that gay couples could do as well as heterosexual couples.

    Why is child bearing not on the list? You can only portray homosexual couples as being completely able to do everything that a heterosexual couple can do … if and only if … you skip over that aspect of what marriage is supposed to be.

    And therein is my essential objection to SSM marriage: to make it work, you have to separate child-bearing from the institution of marriage, and I don’t want to do that.

    • For one thing, it devalues marriage itself (marriage no longer governs an essential human activity)

    • More importantly, it leaves child-bearing completely “out there,” as if bearing children isn’t covered by any social institution or social understanding. Children are considered to be accidents, and not a fundamental purpose of any relationship or institution. They just happen.
  7. Jim Chase

    While I’m certainly concerned over the direction the Court may go insofar as SSM is concerned, at the moment I’m more aghast at reading the bill on the verge of passage in the Illinois General Assembly (if it hasn’t passed already).  These provisions offering so-called “protection” of religious liberty with provisos just proves that the “separation of church and state” isn’t enough for some, but rather, the aim is to keep the Church under the thumb of the State.  Sounds downright Soviet to me.

    Thirty years from now, will we have true religious liberties?  Or will we have sanctioned churches while others are driven underground?

    I’ve always known it was possible.  I just didn’t think it would happen so quickly. 

  8. AHLondon

    Jim Chase, slowly and then all at once. That’s how history moves. 

    Domenech, you are right, the public facility or church cases are coming. SSM is just the catalyst. On possible argument occurs to me. Current tax exempt status for churches is based on the charitable nature of churches.  We will need to argue that Separation of Church and State means that the State cannot tax a religious institution. As the SSM issue will illustrate, the State’s ability to tax a church gives it power over the church in violation of the First Amendment. We will have to be ready with standards for defining a church, which should include time and size elements lest every new faction tries to claim church status. We will also need define who controls the tax exempt funds; we can’t let it turn into a mere tax shelter for rich people to park their money.

    If we can establish that religious institutions of a threshold age and size in which the money is controlled by the officers of the church cannot be subject to tax, then at least the government would lose the coercive power of granting tax status. 

  9. Gretchen
    Jojo: [...]… carving out a narrow exception for sufficiently-religious-as-defined-by-the-state people is a losing rearguard action. · 3 hours ago

    Exactly as demonstrated with Obamacare, where the state has pretty much defined everyone except cloistered nuns and monks as insufficiently religious.

  10. Gretchen
    Jim Chase: While I’m certainly concerned over the direction the Court may go insofar as SSM is concerned, at the moment I’m more aghast at reading the bill on the verge of passage in the Illinois General Assembly (if it hasn’t passed already).  These provisions offering so-called “protection” of religious liberty with provisos just proves that the “separation of church and state” isn’t enough for some, but rather, the aim is to keep the Church under the thumb of the State.  Sounds downright Soviet to me.

    Thirty years from now, will we have true religious liberties?  Or will we have sanctioned churches while others are driven underground?

    I’ve always known it was possible.  I just didn’t think it would happen so quickly.  · 2 hours ago

    Thirty years from now? Looking more like five.

  11. Jojo
    Maggie Somavilla

    Jojo: [...]… carving out a narrow exception for sufficiently-religious-as-defined-by-the-state people is a losing rearguard action. · 3 hours ago

    Exactly as demonstrated with Obamacare, where the state has pretty much defined everyone except cloistered nuns and monks as insufficiently religious. · 36 minutes ago

    Yes.  Exactly.

  12. Late Boomer

    Time until the first Knights of Colombus hall is sued for refusing a same-sex wedding ceremony…6 months (if it hasn’t already happened)

    Time until the first Islamic Cultural Center is sued for the same…anybody?

  13. Paul DeRocco
    Chris Campion: I’m still not sure why the state, the gov’t, in any form, is involved in sanctioning, approving, defining, re-defining, adjudicating, take your pick here, in something that two consensual and free adults wish to do – which is to spend their lives together.

    But marriage isn’t really based on consent, or shouldn’t be. In our culture, entry into marriage is based on consent, but that’s far from universal in world history. But part of the point of marriage is to keep people together, even when their desires change. If marriage is merely an expression of love between two people, then it has no ground on which to demand faithfulness.

    But while two homosexuals may value their own love as much as two heterosexuals, this has little to do with society’s value of it. The demand that marriage continue after romantic passion has gone is only really meaningful when children are involved, and two homosexuals don’t create children. And given that only 2.5% of all children in the U.S. are adopted, I don’t think that the small minority of homosexuals could ever swell that number measurably.

  14. Paul DeRocco

    What I’d like to know is: where’s my conscience exception? Why do only devout religious people get to have moral or philosophical views which the government is bound to respect?

  15. Chris Campion

    That’s interesting.  It’s not really based on consent, but it’s based on consent?  It’s designed to keep people in a loveless marriage?

    This is just another person trying to define something that is entirely personal, and has absolutely nothing to do with you, or anybody else.  Unless you presume that marriages exist because children need to be procreated in an appropriate setting, then you’ve lost me as well, because it sounds like another form of sanctioning.  Pass.

    Paul DeRocco

    Chris Campion: I’m still not sure why the state, the gov’t, in any form, is involved in sanctioning, approving, defining, re-defining, adjudicating, take your pick here, in something that two consensual and free adults wish to do – which is to spend their lives together.

    But marriage isn’t really based on consent, or shouldn’t be. In our culture, entry into marriage is based on consent, but that’s far from universal in world history. But part of the point of marriage is to keep people together, even when their desires change. If marriage is merely an expression of love between two people, then it has no ground on which to demand faithfulness.