WSBA Board of Governors President Anthony Gipe responds to member comments on gay marriage.
I normally use my blog posts to discuss and expand on my guest writers and the topics they are discussing. However, the June article that Barb Rhoads-Weaver and I co-wrote in NWLawyer prompted a couple of letters to the editor that I would like to respond to instead.
The two voiced the precise argument that I criticized in our article, yet their responses both miss the point and make certain presumptions apparently based on their assumptions as to my viewpoint. The responses appear to view my comments as pejorative to religious or spiritual belief, while simultaneously asserting their own fundamental right to believe as they do.
I do not want to suggest that the members providing these comments are not free to believe as they choose. We are all entitled to our own moral and spiritual consciousness. I am myself deeply rooted in my own spiritual traditions. If the comments had ended with merely an assertion that liberty of conscience permits us to respectfully disagree, then I would make no further comment. We could respectively disagree in our own good conscience.
Also, if the sole argument displayed in their responses were limited to the offensive, false equivalency that attempts to link LGBT relationships to a parade of horribles (such as pedophilia, bestiality, incest, etc.), then I would simply let the comments stand on their own dubious merits where the public can judge the speakers on their own words.
However, the issue I was highlighting in the June NWLawyer article was that any “push back” against LGBT rights premised entirely on a belief that the law should grant an exception for religious objections (when personal moral or religious code conflicts) is ethically hazardous and a danger to the rule of law.
As an attorney and a civil rights lawyer, I cannot think of a more corrosive concept in the rule of law than to permit each individual to selectively choose to ignore valid and generally applicable laws based solely on personal religious conscience. That approach is ultimately the path to one of two outcomes: Either the anarchy of individual determination or selective preferred religious belief/theocracy. Both outcomes were expressly rejected in our Constitution.
It also ignores the fundamental fact that religious traditions are not homogeneous, and there are legitimate disputes as to whether faith and spirituality really support any objection to civil law. Even where the article of faith appears unambiguous, if we were to accept one religious view and elevate it over another, we would be creating a de facto establishment of preferred sects in exclusion to others.
One of the fundamental issues that the founders agreed upon in writing the establishment clause to the constitution was that no single group of us was entitled to impose our personal matters of conscience on all others. We are also not entitled to elevate our person moral code to trump the collective rights of society. That is fundamentally what the free exercise clause requires — a right to believe and express as you wish without having state action infringe on your right to believe and express as you wish. But that compromise was struck to prevent any single person’s religious beliefs from trumping any rights in the public square.
The primary fallacy of the religious exemption arguments can be demonstrated by the fact that each of the major religions have significant populations of sincere believers who find the tenets of their religion condones and supports what another sect in the same religion fervently opposes, such as the support of LGBT members and marriages. You can see this divide by looking to the resources in the community for people of faith on such websites as this or simply by Googling “people of faith LGBT” to find numerous links.
The corrosive effect of this exemption argument is that this line of reasoning leads to an elevation of personal belief over the rights of others, even when there is no consensus among people of faith. That would, in essence, raise one moral and faith interpretation above another legitimate faith interpretation. If this argument were backed with the force of law (i.e., codifying religious exception), then it would be tantamount to favoring one fundamental theocratic mentality over all others, which our Constitution prohibits.
Likewise, to seek a legal mandate to permit personal, self-governed exemption from the effect of laws is to invite anarchy. For every sincere religious belief that supports ignoring one class of laws, there are equally compelling and legitimate matters of faith that could be raised to oppose such exemption or to ignore other laws. We have only to look to 20th century history to see examples of these arguments: Religious objection to mixed-race marriages, racial and ethnic profiling in zoning, religious exception to voting rights for women, etc. Each of these movements was backed in part by religious tenets to support exclusion. Once the courts and government accept one religiously based exemption, it must permit them all — otherwise, the government is favoring one sect over another in violation of the Constitution. But to permit them all to except where chosen would be to render general laws meaningless by the exception, thus anarchy.
In fact, until the Hobby Lobby case and the Religious Freedom Restoration Act (RFRA), the U.S. Supreme Court clearly stated the Constitution does not afford religion any exemption to generally applicable laws (Smith v. Oregon). Even Hobby Lobby was decided based on the RFRA statutory language, not constitutional grounds. So no court has actually held that the Constitution supports religious exception to general laws, because the U.S. Supreme Court dodged that question by relying solely on the language of RFRA. That Court was also not asked to determine whether RFRA itself was constitutional as to this issue.
So, when the commenters contend that my position seeks to denigrate their beliefs in favor of mine, they misunderstand my point. Each of us is free to believe as we wish and to speak as we wish, but we cannot bring our moral views into the public square and demand that our public institutions bend to individual belief. When our religious moral views conflict with the Constitution — even though those religious views might be a majority — we are not entitled to ignore the rights of others in our common public rights.
The religious exemption argument is not merely a slippery slope to violate the Constitution, it is a precipice to abandon the rule of law.