Thursday, March 31, 2016

On the Gay Marriage/ Religious Discrimination Double Standard

In the comment section of the New Jersey Star-Ledger’s editorial regarding NJ Reps. Chris Smith and Scott Garrett and their proposed religious discrimination exemption law, the First Amendment Defense Act (the subject of my last post), a correspondent wrote:

Now that the Supreme Court has decided this issue, that gay marriage is a civil right as well as a human right, people with a religious objections need to defer to civil society. Civil law trumps religious law when it comes to civil rights. The Equal Protection Clause is the law of the land, like it or not. People like Smith and Garrett, who believe in religious exemptions to discriminate against other American Citizens, are trying to impose religious laws on society. Haven't we recently had state legislatures in the US pass laws stating that Sharia Law shall not supersede Civil Law. What's good for the goose is good for the gander.

Here is my reply:

There is a fundamental double standard here. The cause of the double standard is to consider only religious convictions. What about non-religious matters of conscience? If it is wrong for religionists to impose their conscientious convictions about marriage on civil society by legally banning gay marriage, why is it not equally wrong for supporters of legalized gay marriage to impose their conscientious convictions on society by legally forcing Christian bakers to serve gay weddings? The answer is: It is just as wrong either way.

As a long-time supporter of marriage equality under the law, going all the way back to the legal battles over inter-racial marriage, I applaud the Supreme Court’s ruling legalizing same-sex marriage across America. Marriage is a right possessed by every adult, and should be protected equally under the law. But the broader right to freedom of association, from which marriage equality is itself subsumed, also deserves equal protection. Marriage equality stands on a foundation of associational equality. Marriage equality without associational equality makes no legal or moral sense.

Yes, conscientious objections—religious or non-religious—must defer to civil law. But the law itself must conform to the principle of protecting rights equally, which is the only purpose of law. Anti-discrimination laws targeting private associations do not meet that test. There is no right not to be discriminated against, because there is no right to force others to deal with you. Freedom of association means freedom for both parties; freedom implying the absence of aggressive physical force of any kind, including the legal variety. If you apply the Equal Protection Clause consistently, you would have associational equality both in marriage and in business, for religious and secular believers alike.

We who support marriage equality under the law should celebrate our victory. But I for one will not join the rights-violating crusade against Christian businesses, even though I consider their refusal to serve gay weddings to be irrational and unjust. To do so would be sink to the same moral level as those who fought to keep gay marriage illegal to begin with.  

Related Reading:

Fine Against Christian Baker Who refused to Serve a Pro-Gay Marriage Cake Exposes Hypocrisy on Both Sides

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