Getting to the Nub of the Matter
I don’t always agree with National Review’s editors, but they hit a home run with their editorial, Legislating Immorality:
To date, 30 states have voted on initiatives addressing same-sex marriage, and in every state traditional marriage has come out on top. But somehow the fact that Mormons got involved during the latest statewide referendum constitutes a bridge too far? In truth, Mormons are a target of convenience in the opening salvo of what is sure to be a full-scale assault on much of America’s religious infrastructure, which gay activists perceive as a barrier to their aspirations. Among religious groups, Mormons are not the biggest obstacle to same-sex marriage — not by a long shot. But they are an easy target. Anti-Mormon bigotry is unfortunately common, and gay-rights activists are cynically exploiting that fact.
There are no websites dedicated to “outing” Catholics who supported Proposition 8, even though Catholic voters heavily outnumber Mormons. And the Church of Jesus Christ of Latter-Day Saints is not remarkably strident in its beliefs on the subject. So far, no gay-rights activist has had the brass to burn a Qu’ran on the doorstep of a militant mosque where — forget marriage! — imams advocate the stoning of homosexuals.
(Emphasis added.) Then this:
Where do they go from here? Gay activists are already using the legal system to try to revoke the tax-exempt status of the Mormon church. If you believe that churches and synagogues, priests and rabbis won’t eventually be sued for their statements on sexuality, you’re kidding yourself. Chai Feldblum, a Georgetown University law professor and gay activist who helps draft federal legislation related to sexual orientation, says that, when religious liberty conflicts with gay rights, “I’m having a hard time coming up with any case in which religious liberty should win.” A National Public Radio report on the conflict noted that if previous cases are any guide, “the outlook is grim for religious groups.”
(Emphasis added.) This is the core of the debate, and it is not mere speculation. The court decisions are trending Cahi Feldblun’s way. For an example of the legal reasoning Feldblun advocates, see Benitez v. North Coast Women’s Care Medical Group, in which the California Supreme Court held, in a 7-0 decision, that it was a violation of a lesbian woman’s civil rights under California’s Unruh Act for a physician to decline, on religious grounds, to artificially inseminate her. The physician did refer the plaintiff to another fertility specialist who provided the service; the woman now has three children. The Supreme Court held that the physician’s religious liberty must give way to the Unruh Act’s requirements.
The Courts and Morality
There is more than one facet to to Prop 8, of course; that’s why it’s such a fascinating, consuming issue. Writing in the Wall Street Journal, William McGurn masterfully summarizes the political-judicial aspect of the ongoing battle, and the role of the courts: “What we have in America is less a culture war than a constitutional war. And if we could just straighten out the latter, we’d go a long way toward diffusing the former.”
The great achievement of our system was to create a political order where . . . great moral disputes, as a matter of policy, are left to the people — with allowance for differences according to region and locale. Moral agents have a role to play, generally by shaping the larger culture in which these decisions are framed and debated. But the outcome is left to the people acting through their elected representatives, a process that inevitably involves compromise, trade-offs and messy accommodations. . . .
What people hold as a moral ideal, however, and what they will accept as a workable compromise are two different things. Left to their own devices, most Americans can work these differences out in politics much as they do in their everyday lives, as untidy as these solutions may be.
The combination of an aggressive gay rights agenda (pressed by what I believe is a small minority of gay people), very gay-favorable laws like the Unruh Act, and compliant courts bodes ill for religious freedom. That may also be true if these matters are left to the ballot box, not the courts. But at least then, after the political process is completed, we’d all feel like we had our say in the matter.