f The Right to Religious Freedom, with Particular Reference to Same-Sex Marriage^*

References

1.  The Constitution Act,1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 2.
2.  See Lawrie Breen, “A Chinese Puzzle”, The Tablet[London], Mar. 5, 2005 (reporting that “new regulations confirm that Beijing perceives religion as unscientific, superstitious and an enemy of progress”). “Last year a secret document, issued by the Central Committee’s Propaganda Department, called for a new drive to promote Marxist atheism.” Id.
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3.  See Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part I: Establishment of Religion”, Wm & Mary L. Rev. 44 (2003) 2105, 2182: “Machiavelli, who called religion ‘the instrument necessary above all others for the maintenance of a civilized state,’ urged rulers to ‘foster and encourage’ religion ‘even though they be convinced that is it quite fallacious.’ Truth and social utility may, but need not, coincide.” (Quoting Niccolo Machiavelli, The Discourses (Bernard R. Crick ed., Leslie J. Walker trans., 1970) (1520) p. 139, 143.) Cf. “Atheist Defends Belief in God”, The Tablet [London], Mar. 24, 2007, p. 33: A senior German ex-Communist has praised the Pope and defended belief in God as necessary for society… “I’m convinced only the Churches are in a state to propagate moral norms and values,” said Gregor Gysi, parliamentary chairman of Die Linke, a grouping of Germany’s Democratic Left Party (PDS) and other left-wing groups. “I don’t believe in God, but I accept that a society without God would be a society without values. This is why I don’t oppose religious attitudes and convictions.”
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4.  Cf. Douglas Laycock, “Reviews of a Lifetime”, Tex. L. Rev. 89 (2011) p. 949, 985: The only reasons that can justify religious liberty to a broad audience in a religiously diverse society are reasons that do not require acceptance or rejection of any propositions of religious faith. Of course such a scheme will not persuade everybody, and perhaps in the end will not persuade anybody. But that is what I was trying to do. I am happy to supplement the argument with religious reasons when speaking to audiences that might be persuaded by them.Some citizens have a religious reason (or reasons) for affirming the right to religious freedom, and for them, the religious reason may be the dominant reason. Cf. E. Gregory Wallace, “Justifying Religious Freedom: The Western Tradition”, Penn State L. Rev. 114 (2009) 485, 488: “[T]he original reasons for singling out religion and placing it beyond government’s power were mostly religious.” On religious reasons for religious liberty, see Daniel O. Conkle, “Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty”, Cardozo L. Rev. ---, --- 32 (forthcoming, 2011), available at http://ssrn.com/abstract=1739244.
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5.  As of May2012, ten countries grant access to civil marriage to same-sex couples: the Netherlands since 2000, see the Act Opening the Institute of Marriage, Burgerlijk Wetboek [BW] [Civil Code] art. 30:1 (Neth.); Belgium since 2003, see Burgerlijk Wetboek [BW] [Civil Code] art. 143 (Belg.); Spain since 2005, see Law 13/2005 (Código Civil [C.C.] [Civil Code] 2005, 157 (Spain); Canada since 2005, see The Civil Marriage Act, 2005 S.C., ch. 33 (Can.); South Africa since 2006, see the Civil Union Act, Act No.17 of 2006 (S. Africa)); Norway since 2009, see Forslag til lov om endringer i ekteskapsloven, barnelova, adopsjons­loven, bioteknologiloven mv. (felles ekteskapslov for heterofile og homofile par) (Nor.); Argentina since 2010, see Law No. 26.618, July 22, 2010, [31.949] B.O. 1. (Arg.); Sweden since 2009, see Betänkande 2008/09:CU19 Könsneutrala äktenskap och vigselfrågor (Swed.); Portugal since 2010, see Lei no. 9/2010. D.R. no. 105, Série I de 2010-05-31 (Port.); and Iceland since 2010, see 485. mál lagafrumvarp Lög nr. 65/2010, 138. löggjafarþingi (Ice.). In December 2009, Mexico City granted access to civil marriage to same-sex couples, see Código Civil para el Distrito Federal, Art 146 (Mex.). In December 2011, the judiciary in Alagoas (Brazil) announced that same-sex marriages would be performed there, see T.J.A.L., Provimento No. 40, 06.12.2011 (Braz.). Many more countries, or parts of countries, grant to same-sex unions all or some of the legal benefits granted to opposite-sex marriages, but without calling the unions “marriage:” Andorra, Australia, Austria, Brazil, Colombia, Croatia, the Czech Republic, Denmark, Ecuador, Finland, France, Germany, Greenland, Hungary, Ireland, Isle of Man, Israel, Lichtenstein, Luxembourg, parts of Mexico (Coahuila and the Federal District), New Zealand, Slovenia, Switzerland, the United Kingdom, and Uruguay (see Christy Glass et al., Toward a ‘European Model’ of Same-Sex Marriage Rights: A Viable Pathway for the U.S?, 29 Berkeley J.Intl. L. 132, 133 n. 5, 140 nn. 32 & 35-36 (2011). See also Nancy J. Knauer, Same-Sex Marriage and Federalism, 17 Temp. Pol & Civ. Rts. L. 101, 105 n. 28 (2008)). In the United States, as of May 2012, eight states and the District of Columbia (2010)(Religious Freedom and Civil Marriage Equality Act, 57 D.C. REG. 27) grant access to civil marriage to same-sex couples: Massachusetts since 2003, see Goodrich v. Department of Public Health, 798 NE2d 941;, Connecticut since 2008, see Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407); Iowa since 2009, (see Iowa Code § 216.18); New Hampshire since 2009, (see Equal Access to Marriage, RSA 457:1-a); Vermontsince 2009, (see An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, 15 V.S.A. § 1); New York since 2011,(see Marriage Equality Act, NY CLS Dom Rel § 10-a); Washington since 2012, (see Rev. Code Wash. (ARCW) § 26.04.010); and Maryland since 2012, (see Civil Marriage Protection Act, 2012 Md. ALS 2). Many more states grant to same-sex unions all or some of the legal benefits granted to opposite-sex marriages, but without calling the unions “marriage:” California,see Cal Const, Art. I § 7.5; Colorado, see C.R.S. 15-11-103; Delaware see DE S.B. 30,; Hawai’i, see S.B No. 232 (S.D.1, H.D.1),; Illinois, see IL H.B. 5170; Maine, see 22 M.R.S. § 2710); Nevada, see Nev. Rev. Stat. Ann. § 122A.010; New Jersey,see N.J. Stat. § 37:1-28; Oregon, see ORS § 106.305; Rhode Island, see R.I. Gen. Laws § 15-3.1-8; and Wisconsin, see Wis. Stat. § 770.01.
6.  Kenji Yoshino, “Marriage Partners”, New York Times Magazine, June 1, 2008. See also In re Marriage Cases, 183 P.3d 384, --- [63-65] (California 2008).
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7.  See Kent Greenawalt, “History as Ideology: Philip Hamburger’s Separation of Church and State”, Cal. L. Rev. 93 (2005) p.367, 390–391: “[Laws] that enforce a purely religious morality …unacceptably impose religion on others.” Greenawalt gives, as an example, “laws against homosexual relations based on the view that the Bible considers such relations sinful…” Id. See also Kent Greenawalt, Religion and the Constitution: Volume 2: Establishment and Fairness (2007) p.533: “[R]equiring people to comply with the moral code of a religion, absent any belief about ordinary harm to entities deserving protection, is a kind of imposition of that religious view on others.”
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8.  USCCB Administrative Committee, “Promote, Protect, Preserve Marriage: Statement on Marriage and Homosexual Unions”, Origins33 (2003) p.257, 259. It bears mention that the pope and bishops also insist that all human beings, gays and lesbians no less than others, are equally beloved children of God. “[Our teaching] about the dignity of homosexual persons is clear. They must be accepted with respect, compassion, and sensitivity. Our respect for them means that we condemn all forms of unjust discrimination, harassment or abuse.” Id. See William N. Eskridge Jr., “Noah’s Curse: How Religion Often Conflates Status, Belief, and Conduct to Resist Antidiscrimination Norms”, Ga. L. Rev. 45 (2011) p.657, 697, 704: The Vatican’s 1975 Declaration Persona Humana announced that “homosexual acts” are “disordered,” but also acknowledged the modern distinction between sexual orientation and sexual acts. The next year, the National Conference of Catholic Bishops responded with a more gay-tolerant document, “To Live in Christ Jesus,” which said this: Homo­sexuals, like everyone else, should not suffer from prejudice against their basic human rights. They have a right to respect, friendship and justice. They should have an active role in the Christian community.” Different dioceses adopted slightly different readings of these documents. For example, the Church in the state of Washington interpreted the pronouncements to support the conclusion that “prejudice against homosexuals is a greater infringement of the norm of Christian morality than is homosexual orientation or activity.” … [R]eflecting a strong turn in public opinion toward toleration for gay people, the American Catholic Church was subtly readjusting its doctrinal stance toward homo­sexuality. According to the Vatican, men and women with homosexual tendencies “must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.” After fighting the antidiscrimination law in Massachusetts through the 1980s, Catholic dioceses acquiesced in similar laws adopted by Catholic Connecticut in 1991 and Catholic Rhode Island in 1995. Archbishop John Francis Whealon of Hartford, Connecticut said this in 1991: “The Church clearly teaches that homosexual men and women should not suffer prejudice on the basis of their sexual orientation. Such discrimination is contrary to the Gospel of Jesus Christ and is always morally wrong.” Many Connecticut legislators took the Archbishop’s statement as tacit approval of the antidiscrimination measure (adorned with religious liberty-protective exemptions). The Roman Catholic shift in emphasis—not necessarily a shift in precise doctrine—was representative of organized religion in America, as public opinion shifted strongly toward toleration of gay Americans and same-sex couples.
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9.  See, e.g., John M.Finnis, “Law, Morality, and ‘Sexual Orientation’”, Notre Dame L. Rev. 69 (1994) 1049; John M. Finnis, “The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations”, Am. J. Jurisprudence 42 (1997) 97; Patrick Lee & Robert George, Body-Self Dualism in Contemporary Ethics and Politics (2007). I responded to Finnis’s 1994 argument here: Michael J. Perry, “The Morality of Homosexual Conduct: A Response to John Finnis”, Notre Dame J. L. Ethics & Pub. Pol’y 9 (1995) 41. For other responses to the sort of argument Finnis, George, and Lee make—the “hostile to authentic human well-being” argument—see also the sources cited in notes 7 & 18 of Andrew Koppelman, “Careful with that Gun: Lee, George, Wax, and Geach on Gay Rights and Same-Sex Marriage” (2010), http://ssrn.com/abstract=1544478.
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10.  See, e.g., Stephen J. Pope, “The Magisterium’s Arguments against ‘Same-Sex Marriage’: An Ethical Analysis and Critique”, Theological Studies65 (2004) p.530; Todd A. Salzman & Michael G. Lawler, “Catholic Sexual Ethics: Complementarity and the Truly Human”, Theological Studies 67 (2006) p.625; Patrick Lee and Robert P. George, “What Male-Female Complementarity Makes Possible: Marriage as a Two-in-One-Flesh Union”, Theological Studies 69 (2008) p.641; Todd A. Salzman & Michael G. Lawler, “Truly Human Sexual Acts: A Response to Patrick Lee and Robert George”, Theological Studies 69 (2008) p.663. See also n. # [Farley]. Moreover, “[a] report by Washington-based Public Religion Research Institute found that 74 percent of Catholics favor legal recognition for same-sex relationships, either through civil unions (31 percent) or civil marriage (43 percent). That figure is higher than the 64 percent of all Americans, 67 percent of mainline Protestants, 48 percent of black Protestants and 40 percent of evangelicals.” National Catholic Reporter, Apr. 1, 2011, at 16. “What’s more, even among Catholics who attend services weekly or more, only about one-third (31%) say there should be no legal recognition for a gay couple’s relationship, a view held by just 13% of those who attend once or twice a month and 16% of those who attend less often.” “New Poll: Nuance on Same-Sex Unions Drives Up Catholic Support,” http://blog.faithinpubliclife.org/2011/03/new_poll_highlights_catholic_s.html, Mar. 22, 2011.
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11.  Cf. Michael W. McConnell, “The Problem of Singling Out Religion”, DePaul L. Rev50 (2000) 1, 44: “Is the Civil Magistrate about whom John Locke wrote more ‘competent a judge’ of the ‘Truth’ about, for example, human sexuality than about religion?”
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12.  Cf. Sabrina Tavernise, “Adoptions Rise by Same-Sex Couples, Despite Legal Barriers”, New York Times, June 13, 2011; Frank Bruni, “2 Dads, 2 Daughters, 1 Big Day”, New York Times, June 21, 2011.
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