Book Review

Family North Carolina Magazine—March/April 2009

by R. Matthew Lytle, Ph.D.

Same–Sex Marriage and Religious Liberty

Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson, eds. Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Lanham: Rowman & Littlefield, 2008. 329 Pp. $34.95.

As proponents work toward the normalization of same-sex “marriage” (SSM), their calls for the “right” of homosexuals to marry will inevitably come into conflict with religious liberty. This is the claim of the Beckett Fund for Religious Liberty, which helped publish the book Same-Sex Marriage and Religious Liberty. The Beckett Fund is a “nonpartisan, interfaith, public-interest law firm dedicated to protecting the free expression of all religious traditions”. The Beckett Fund does not limit itself to representing Christian clients, but has represented a wide range of religions from Agnosticism to Zoroastrianism.

Marriage is a collection of essays by eight different legal professors and practitioners representing views ranging from conservative to self-professed radical. The essays fit into one of two groups: one group discusses the nature of the problem and the other group proposes solutions to the conflict. While this is the case, the essays are not arranged in a way that makes this division clear. As the book is arranged now, chapters 1, 2, and 4 discuss the areas of conflict, while chapters 3, 5, and 6 discuss the solutions. Moreover, chapters 2 and 4 cover much of the same ground and would naturally work best back-to-back. Switching the order of chapters 3 and 4 would have presented a better and more natural progression of thought.

While this is the case, the essays themselves are well researched and well written. The editors chose the contributors well. Not only do the contributors represent a variety of (often conflicting) viewpoints, they are also recognized experts on the subject of religious liberty. Because of this, their arguments deserve to be taken seriously, even if the reader does not—and indeed cannot—agree with all the represented viewpoints.

The chapters describing the current and future state of the conflict between SSM and religious liberty give similar analyses. The authors see a connection between abortion and SSM because people generally object to both on religious terms. While many states allow doctors and pharmacists to deny abortive measures based on conscience, this allowance is not available nationwide. Conscientious objection to granting services that promote the homosexual lifestyle is also not recognized nationwide. Indeed, more and more providers like Catholic adoption agencies in Massachusetts are being forced to decide between promoting homosexuality or standing by their religious convictions and therefore risk going out of business.

The authors also point to a connection between SSM and race. Several of the chapters discuss at length the case Bob Jones University v. United States, in which the U.S. Supreme Court denied tax-exempt status to the school because of its stance against interracial dating. In making this decision, the Court relied not on section 501 of the Internal Revenue Code, but on the actual content of Bob Jones policies, thus abandoning the content-neutral approach that the Court had traditionally taken. If the government continues down this line, it runs the risk of turning tax-exempt status into a subsidy that removes limits on the government’s control when it comes to the Constitution.

The continued reference to Bob Jones indicates that the authors see significance in this ruling and its application to SSM, predicting that the case will be the focal point for future religious freedom struggles. Whether the authors see a valid correlation between race and “sexual orientation” is not always clear. What is clear, however, is that they see others making this correlation in order to push for the normalization of SSM. Moreover, the authors almost unanimously see the revocation of tax exemption as the main tool that the courts will use to normalize SSM.

The suggested solutions cover a wider range of viewpoints. Charles Reid argues that marriage cannot be separated from religion because of American law’s roots in natural law and English common law. Robin Wilson takes a more balanced approach and looks for ways to accommodate both sides so that no one is unduly burdened. Chai Feldblum openly gives preference to sexual liberty over religious liberty by arguing that the discussion must be framed in terms of the Due Process clause instead of the Free Exercise clause.

Same-Sex Marriage and Religious Liberty is a well-researched and generally well-reasoned analysis of the intersection between SSM and religion. While not everyone will agree with all of the authors’ conclusions, they will benefit from the authors’ expertise. This book serves as a helpful legal backgrounder and a framework for predicting how these conflicts will continue to emerge.

R. Matthew Lytle is director of research for the North Carolina Family Policy Council.