Lopez: Do exemptions like those in the New York same-sex-marriage bill clear the way for people to support same-sex marriage if they were going to support it anyhow?
Messner: No, as other analysts already have observed, those much-touted exemptions leave much to be desired. Consider the case in New Mexico, where a Christian photographer was hauled before the state human-rights tribunal when she conscientiously objected to participating as a photographer in a same-sex commitment ceremony. The New York legislation just enacted appears to do nothing to avert that kind of situation in New York.
Similar concerns have been raised about how a combination of same-sex marriage and nondiscrimination laws threatens the religious freedom of professionals. Certainly many counselors, psychologists, lawyers, and doctors in New York have no religious or moral problem serving homosexual clients. But it should surprise no one if many of these same professionals might conscientiously object to providing services that facilitate or express moral approval of same-sex conduct and relationships. Again, the New York law just enacted appears to do nothing to protect religious and moral conscience in many if not most or all of these situations...
Messner: It’s not entirely clear from the face of the legislation whether certain religious groups who serve children and other vulnerable members of society will be protected. Maximizing the number of private social-service groups helping the poor and disadvantaged in society seems like a no-brainer, even for people who support same-sex marriage. Unfortunately, although New York lawmakers had a chance to be very clear on this point, they opted instead for confusion and ambiguity.
Given the hostility some activists have shown to groups like Catholic Charities in the past, you can be fairly certain that many of them will take any future opportunity to argue that religious adoption and foster-care agencies objecting to same-sex marriage should be put out to pasture. Obviously, this kind of thing is bad for religiously inspired social action and for the poor and needy people who benefit from it...
Lopez: So if a state is going to redefine marriage, it needs to provide a lot more protections for religious freedom than New York did?
Messner: It’s more basic than that. The religious-freedom problems associated with same-sex marriage cannot be completely exempted away. Even if same-sex marriage legislation included every religious-freedom protection recommended by the experts, new fact situations can always arise. Statutory protections enacted today can be diminished and even repealed in the future. And even the strongest legislative protections may be unfavorably construed or misapplied by activist judges.
More fundamentally, however, exemptions fail to solve one of the major reasons same-sex marriage threatens religious and moral conscience in the first place. Same-sex marriage does not simply include more people in the definition of civil marriage; it labels the natural understanding of marriage as a form of irrational prejudice, ignorance, bigotry, and even hatred. In other words, same-sex-marriage laws teach the public that people who view marriage in the natural way are morally equivalent to racists.
Once this idea is embedded in the law, there will be enormous pressure to take it to its logical conclusion by marginalizing and penalizing people who continue to think marriage is one man and one woman. Some of this pressure will come from state sources and some will come from private sources, but in both cases it will find ways through whatever cracks might exist in protections for religious and moral conscience. As Princeton professor Robby George put it in your recent interview with him, “If you ask, ‘What can be done going forward around the country to protect religious liberty?’ the answer is this: Win the fight to preserve the legal definition of marriage as the conjugal union of husband and wife. Period.”
