Ask a libertarian: gay marriage and religious freedom

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The Supreme Court last Friday issued their decision in Obergefell v. Hodges, removing all laws and state amendments denying marriage licenses to gay couples. Voices in the religious right, from Republican presidential hopefuls to public officials to religious leaders, all lined up to claim the decision violates their religious liberties. The ACLU announced it would no longer defend religious freedom laws like the Religious Freedom Restoration Act because "religious liberty doesn’t mean the right to discriminate or to impose one’s views on others."

With all of the talk of rights, discrimination, imposing one's views on others, and such, it can seem really quite confusing. Lots of political opinion starts from the conclusion one wants to end up with and works backward to find a way to justify that conclusion under the guise of rights, freedom, and liberty - not all of it is an apt application. So let's work the other direction, and let's start with what rights, freedom, and liberty are, to see what conclusions follow. Maybe in the mix you'll get a greater understanding of why the other side feels like it does.

What is a "right"?

A "right" is a liberty you enjoy so long as nobody stops you from enjoying it. Our system of government begins with the presumption that people, both individually and collectively, have a full suite of all-encompassing rights to their lives, their liberties, and their pursuits of happiness in any way they so choose so long as they do not cause harm anybody else's life, liberty, or property without their consent. Then we selectively waive portions of our liberty to the government in specific and enumerated ways. These portions of our liberty we yield give the government "powers".

So in other words, a "right" is freedom from government "power". The government uniquely has the power to forcefully coerce individual action or inaction through laws - and make no mistake, every law is coercive by threat of force. Disobedience results in the loss of your property (fines and seizures), your liberty (incarceration), or even your life (death penalty or police shooting).

All of our rights are rights that we enjoy when this government coercion is absent, or in other words so long as the government leaves you alone, your rights are secure. You enjoy your right to free speech so long as the government doesn't arrest you. You enjoy your right to be secure in your person, home, and effects so long as the government does not search you or seize your property. You enjoy your right to the freedom of the press so long as the government does not coerce you against publishing.

All rights are enjoyed against coercion by the government alone. Facebook shutting down your profile because of the content of your speech is not an infringement upon your rights. Being fired from your job because of your speech or behavior is not an infringement upon your rights. They are merely Facebook or your employer invoking one of their liberties: the freedom of association, which they enjoy so long as the government does not forcibly stop them.

It also deserves mention that if a person or group of persons, not under the color of the law, materially deprive you of your life, your liberty or your property without your consent, we call this "crime." 

What about other rights, like the right to public education?

As I said above, rights are liberties one enjoys so long as the government does not interfere. One cannot in this regard have a "right" to a public education; you enjoy an education so long as it is provided for you. The government must collect taxes, build schools, purchase books which others must write and publish, and employ teachers to instruct you. For the sake of argument, if there was nobody willing to build the schools or write the books or work as a teacher (imagine, for example, that the government would not pay people for these services, so no person was willing to forgo income to provide them), the government would have to forcefully compel people against their will to act in order for you to enjoy a public education; such compulsion would be active violations of those peoples' rights.

Public education is a public good or a public service, not a right. Nothing may be called a right if it forces others to act in order for you to enjoy it.

In political philosophy circles, what I'm calling rights vs. public goods may also sometimes be called negative rights vs. positive rights (negative and positive aren't being used normatively here; "negative rights" are enjoyed in the absence of action while "positive rights" are enjoyed in the presence of action).

So in the context of rights, what does "imposing your views on me" mean?

A party "imposing their views on you" would mean that they got the government to make it punishable by law to act in a way contrary to their views, regardless of what you think. It does not mean refusing to facilitate or accommodate you in some regard because of their views. If acting in a particular way that causes no material harm to another person, if that behavior is against the wishes of others and in conformity with your conscience, and if that ultimately results in criminal penalties against you, then others have successfully imposed their views upon you.

Does discrimination violate my rights?

It depends on who is doing the discriminating: the government? Or one or more persons?

The government may not discriminate against you without violating your rights. This applies to all levels of government. The Fourteenth Amendment to the Constitution, passed in the aftermath of the Civil War and one of the most powerful and liberty affirming amendments to our Constitution, did many things but among them, the Equal Protection Clause.

The Equal Protection Clause states: "No State shall... deny to any person within its jurisdiction the equal protection of the laws." If the government on any level makes a law, nothing in that law or its administration may discriminate against a person on the basis of their ethnic, cultural, sexual, religious, political, or racial identities.

But what about one or more persons?

One of the rights implied in the First Amendment to the Constitution as identified by the Supreme Court is the right of free association. You may choose whom you want to associate with or not associate with. You get to choose your friends. You get to choose your sexual partners or life partners. You get to choose whom you do business with, both as a consumer and a supplier. If the government were to regulate or limit what is a valid basis for your decision in your choices of association, that would be a violation of your freedom of speech. But...

Wait, wait wait. What about the whole Civil Rights movement?

Right. That.

The natural evolution of liberty in America is funny. We've steadily increased the equality of to whom equal liberty was extended. Full liberty was originally granted only to white, straight, cis-, Protestant, land-owning males. Across the boundaries of race, gender, faith, wealth, and sexual identification, America has consistently expanded the breadth of the populace that enjoys the maximally available extent of liberty. However, in America, we've also steadily decreased the maximum extent of that liberty. The freedom of association is no different; since it was first held by the Supreme Court, its extent has continually been reduced, sometimes clearly for good and sometimes less clearly.

The Civil Rights Act of 1964 was a tremendous, important, necessary, and just piece of legislation. It also ran roughshod over the freedom of association; it forced any privately-owned hotel, restaurant, theatre, and other "public accommodations" to do business with any person regardless of race, color, religion, or national origin.

If you think about it, choosing who you do business with is an integral part of the market and of free speech through association. Consumers should get to choose what businesses they patronize on whatever basis they want. Some of those bases are pretty uncontroversial: as a bartender, I could throw a patron out of the bar who was shouting obscenities at me; as a contractor, I've fired clients who insufficiently respected my nights and weekends with non-emergency emergencies; as a supporter of gay rights, I've chosen not to eat at Chik-Fil-A in several years. What makes that speech free though is the absence of laws validating some reasons for declining association versus others. The Civil Rights Act of 1964 invalidated some of those reasons (reasons I think are abhorrent but reasons that ultimately still are violations of free speech.)

So how could the Civil Rights Act be both necessary and just while being a violation of rights enshrined in the First Amendment? Because in the Jim Crow South, those rights were being functionally denied to people of color. If I find the business practices of a restaurant abhorrent, I can go and start my own restaurant that adheres to better business practices. I can go to the bank and get a loan based on an impartial evaluation of my financial reliability, and I've been able to develop good credit because I've been privileged enough to encounter minimal obstacles to my professional success on the basis of my skin or genitals. I can rest assured that if I call 911 to report a disturbance or a crime to my business, the police will show up and take my concerns seriously. I can with minimal resistance obtain a business license and enjoy a somewhat unintrusive relationship with the health inspector. All of the institutions of society function in such a way to give me the opportunity to create an alternative.

Black people in the Jim Crow South lacked all of the above. Tremendous impediments to income or capital. Lack of protection from the police at best, and direct violence from the police at worst. Limited support from the city for licensing and continued harassment from the city for inspection matters. All societal institutions functionally eliminated the opportunity for black people to create their own alternative and enjoy their own freedom of association. If their freedom was systematically denied, it cannot have been unjust to limit the freedom of association of others in order to grant a modicum of that freedom back to black Southerners.

However, other forms of private discrimination that did not have such overwhelming and systemic character have also been bled from the freedom of association. Supreme Court decisions and further federal statutes have limited the right of free association in many forms of contracts - e.g., school admissions, housing, employment - when those association decisions are made on various discriminatory dimensions.

Was the Supreme Court's decision in Obergefell v. Hodges correct?

Yes. Absolutely. There are no stupid questions, but this one comes close.

Civil marriage licenses are a government service. Intimate associations are one of the clearest of the cases where choice in association should be free from government coercion. If government is going to offer civil benefits based on one's choice of intimate association to another consenting adult, by the Equal Protection Clause, it must offer those civil benefits to any choice of intimate association to another consenting adult.

Rand Paul is saying government shouldn't be in the business of marriage. What do you think?

Rand Paul is right on that part. Ultimately, marriage is just a contract between two people, and I don't think in general that you should ever need government sanction to enter into a contract. I'd love to see a world in which we returned to that. I love my wife, and I'm proud to have married her, but there wasn't a moment where I said, "Sweetheart, I love you so much and our life together is so wonderful that I want to bring the State into our relationship." Getting our marriage license was the least significant part of standing in front of God, friends, and family to declare our love and commitment to one another. But on the other hand, I suppose it's easy for me to undervalue something I never couldn't get.

Paul and I agree that people should be able to enter into marriage contracts without getting the State involved. Paul and I disagree in that I think if the State is going to require a state-issued license to get married, it absolutely may not discriminate to which pairs of consenting adults it issues them and to which it does not.

Does legalizing same-sex marriage violate anybody's freedom of religion?

Nope. Also, stop saying "same-sex marriage was legalized." Anything that does not cause material harm to others is by default legal. It was always (and the Supreme Court decision affirms it is still) illegal to deny them a marriage license; it did not become legal to issue them one. The states were violating the Constitution and the Supreme Court stopped them from doing so.

But again, no, nobody's freedom to religion is being violated. You enjoy your freedom of religion in so far as the state does not interfere. This decision removed the states' interference with same-sex couples' receipt of marriage licenses. It did not impose state interference on anybody.

So why are conservative, religious leaders claiming this is an affront to their freedom of religion? Why are they flipping out at this decision?

Great question.

People of faith and people not-of-faith enjoy First Amendment protections against any establishment of religion by the state - that is to say that the State may not prohibit a person's free expression of religion nor impose any religion's viewpoints on any person.

Does the recognition of the right of same-sex couples to marry impose religious values on any person? No. No, it does not. So why are the vocal people of faith suddenly panicky about religious freedom? Because the secular left has made them panicked by trying to (sometimes successfully) impose their viewpoints upon people of faith, primarily by whittling away at the freedom of association.

Take Burwell v. Hobby Lobby, the case in which Hobby Lobby, a company closely-held by a small set of owners of deep religious conviction, did not wish to pay for certain birth control options mandated by the PPACA (aka ObamaCare) which violated their religious sensibilities. In this case, we had a right versus a public good. Hobby Lobby, out of religious conviction, enjoyed their right to religious freedom so long as the government left them alone to enjoy it. Forcing them to violate their religious convictions over birth control would be contrary to that freedom, and the Supreme Court rightly decided that their religious freedom could not be trampled in order to provide a public good like birth control. The left outcried that it was Hobby Lobby imposing their religious viewpoint upon their employees, but as we explained above, this fails to meet the qualifying test of "imposing one's viewpoint on another": people of faith did not employ the government to punish the use of birth control with criminal consequences, nor did they even threaten their employees with termination for birth control usage; they merely refused to accommodate another person's contraceptive use. Quite the contrary, it was those of a different covenant who wished to impose their viewpoints on contraception upon the owners of Hobby Lobby; were the owners of Hobby Lobby to refuse, adhering to their own convictions, they would be in violation of the law.

Judicial review does not always rule in favor of the freedom of association. Take Elane Photography v. Wilcox in New Mexico, in which a photographer declined two same-sex clients who wished Jonathan and Elaine Huguenin to shoot their wedding. The state courts ruled that a photographers could not deny the business association on the basis of their religious conviction against same-sex marriage. Freedom of association would be freedom from being compelled into a business relationship they did not wish to enter; that freedom was denied. A similar case in Colorado over a wedding cake also ruled against the freedom of association.

Persons of faith who do not condone same-sex marriage have reason to be scared into having others' beliefs imposed upon them. Even the ACLU has abandoned the idea that people of faith should enjoy freedom of association, much to the surprise of many libertarians. That's an ominous signal to communities of faith.

Why are they flipping out over this? Many, many people of faith in the United States believe in the Bible, and the Bible is replete with the pattern of stories in which when the people of Israel forsake God's law and embrace sin, God punishes those people and wreaks havoc on Israel until they return to their covenant. Those people are flipping their shit because they honestly believe that institutionalizing same-sex marriage will bring God's wrath upon America.

Those are private sector workers. What about people of faith who work for the government? Do they have to issue marriage licenses to same-sex couples?

Yes, they do.

When you are employed as an agent of the government, be that a County clerk, a police officer, a public school teacher, or the attorney general of Texas, to the extent of your job duties, you check your personal First Amendment rights at the door. A County clerk who is a person of faith for whom same-sex marriage is an abomination has no standing to, on the basis of his or her own religious convictions, deny issuance of a marriage license to a couple qualified for such a license by law.

This isn't any different than a public school teacher trying to include Creationism in their curriculum, a judge including going to Sunday church as a condition of parole, or any other person employed by the State when it comes to the free exercise of religion. When you work for the state, you are an extension of the state; the state may not be guided by the precepts of any particular religious faith or any religious faith at all. It's only when you are on your own time, you may enjoy your First Amendment rights to their fullest.

If you are a County clerk and morally object to issuing marriage licenses to same-sex couples with a qualifying application, you should quit.

What about the clergy? Will they ever be forced to ordain a same-sex marriage?

Nope. The clergy have both the First Amendment rights to free association and free expression of religion on their side. For the state to mandate they religiously officiate a same-sex marriage ceremony would require such a deep eviceration of the First Amendment that we might as well throw the Constitution away.

What about people who say that we should leave this decision to the states?

I'm a huge supporter of the Tenth Amendment, which reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The fifty states are so diverse and have such different needs that one-size-fits-all national policy is far too blunt an instrument. Additionally, allowing states to experiment and compete on certain areas of policies yields better policies and more efficient government. All of that is wonderful and we should be doing more of it.

Libertarians largely believe the eviceration of the Commerce Clause, which originally allowed the federal government to regulate only international and interstate commerce, was the death of the Tenth Amendment. Starting with US v. Wrightwood Dairy and Wickard v. Filburn, both in 1942, judicial review has expanded the federal reach of the Commerce Clause to cover anything that might impact any interstate market for any goods or services, effectively rendering it moot and allowing the federal government to regulate almost anything. For example, the Controlled Substances Act, which outlaws recreational drugs and regulates pharmaceuticals, would never have been something the Founders imagined the Commerce Clause covered; remember that a few decades before these decisions, we believed it required a Constitutional amendment to nationally outlaw alcohol consumption. The legalization of marijuana in several States and the condoning of marijuana for medicinal use in even more States is the most effective demonstration in recent memory of why a healthy Tenth Amendment would serve us as a nation well.

But the Tenth Amendment does not grant the States free reign over everything. Through the Fourteenth Amendment, the States are enjoined from passing laws that violate rights enumerated and implied in the Constitution. That is why the Supreme Court can invalidate state laws and even state constitutional amendments; they're all subordinate to the Constitution, and thus, the Tenth Amendment not withstanding, the States have no power to deprive us of rights that the Constitution protects.

Equal access to civil marriage is one such right. The States cannot touch it.

TL;DR?

  • People have rights, and all rights are ultimately the right to be left alone so long as you aren't hurting anybody else. States have powers, and states can infringe on peoples' rights; people not acting under the color of the law cannot infringe on peoples' rights.
  • Imposing your views on somebody else means getting the state to force people under threat of force to do what you think is right. No state force involved, no "imposing your views."
  • The Supreme Court was right to affirm that, so long as civil marriage is a benefit offered by the states, same-sex couples enjoy equal access to those benefits.
  • People of faith whose conscience tells them that same-sex marriage violate's their covenant with God are terrified that the erosion of the freedom of association will force them to condone same-sex marriages in ways that violate their conscience. They have reason to be afraid, as the secular left has consistently attempted to undermine their freedom to decline to associate with people in non-hetero/cis- relationships.
  • People of faith who work in the government will absolutely and rightly be compelled to perform their job functions regardless of their religious convictions or to cease their employment with the state. Members of the clergy will never be compelled to ordain a same-sex marriage, and rightly so. 
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