Why "religious freedom" arguments about gay marriage fail

This November, Minnesota will vote on an amendment to ban same-sex marriage in the state constitution. Reverend Mark Kuether of the Congregational United Church of Christ recently wrote an opinion piece for the Detroit Lakes Tribune, arguing that religious freedom requires legal recognition of gay marriage. Kuether says:

This amendment would tell clergy who they can and cannot marry in their congregations. Some churches and religious organizations want to recognize the relationships of committed gay and lesbian couples. Some don’t. It should be their choice. However, this amendment does the opposite. It tells religious leaders they are not allowed to marry same-sex couples. Many faiths want to decide for themselves. This amendment represents a one-size fits all government mandate on our state’s churches.

It’s easy to see why this argument is appealing: it takes the usual religious objections to legal gay marriage, and turns them on their head. Instead of claiming that legalizing same-sex marriage would curtail religious freedom, it argues that a ban on same-sex marriage is the real infringement on religious freedom. And it also points out that “religion” is not a monolithic body that’s uniformly opposed to gay marriage, as many religious opponents of gay marriage often like to pretend.

But the religious freedom argument for marriage equality is just as flawed as the religious freedom argument against marriage equality, and for precisely the same reasons. Those who argue against gay marriage on the grounds of religious freedom make the mistake of conflating civil marriage law with religious marital practices. Out of willful or genuine ignorance, they claim that the legalization of same-sex marriage would mean all churches and other religious institutions are now required to perform same-sex wedding ceremonies. This is simply contrary to fact, which is plain to see in every state where same-sex marriage is legal and intolerant religions are still free to conduct only the weddings they want.

Just as with opposite-sex marriage, same-sex marriages under civil law are the kind you get at the city hall or another government office. Its legal aspects are a purely secular matter, and that legal recognition does not oblige any religion to celebrate these marriages. The recognition of opposite-sex marriages in civil law has never meant that a Catholic church is required to let just anyone get married in a cathedral, and same-sex marriage is no different. The people who make this argument don’t seem to understand that you can’t just go to any church, synagogue, mosque or temple, and demand to get married there. In other countries with official state churches whose doctrines are decided by legislators, those churches may be required to solemnize same-sex marriages, but in the United States, the government is entirely unable to tell a religion which marriages and relationships it can and cannot celebrate.

For that reason, the claim that a ban on gay marriage “tells religious leaders they are not allowed to marry same-sex couples” is likewise false. Various religious bodies, including the United Church of Christ, already choose to recognize same-sex marriages and perform same-sex wedding ceremonies as part of their faith. And if they only wanted gay, queer, and otherwise extraordinary couples to get married at their churches, they would be fully within their rights, too. Because civil marriage and religious marriage are completely separate practices, a civil ban on same-sex marriage does not prevent them from doing this.

Conversely, a certain religion’s marital practices are not and should not be used to define the civil marriage laws which apply to everyone. The Catholic church may choose to recognize as valid only those marriages which abide by their specific religious requirements, but that doesn’t mean these are the only marriages that are recognized under civil law. No religion gets to dictate our nation’s civil, secular laws, and they can’t demand that everyone be forced to live under a particular religious doctrine that they may not even believe in. Even if no religion in history approved of same-sex marriages or wanted to perform them, this would be no argument against recognizing same-sex marriages under civil law. And just as we wouldn’t let an anti-gay church define what marriage is for everyone, we also shouldn’t let a pro-gay church define what marriage is for everyone.

Respect for religious freedom does not demand that our civil law must ban all the marriages a religion bans, and allow all the marriages a religion allows. The scope of religious freedom does not extend that far. There are certain faiths that approve of many different kinds of marriages which are not recognized under civil law. Does this mean the state is required to recognize child marriages or multiple marriages just because someone’s religion does? No, just as a racist church that disapproves of interracial marriage cannot impose this rule upon the populace at large. But all of these groups already have the freedom to practice their religious marriages in accordance with their beliefs. And just as the legalization of same-sex marriage does not burden that freedom, neither does banning same-sex marriage.

The claim that legal gay marriage limits religious freedom is a complete non-starter. But so is the idea that its absence poses a similar restriction. There are already plenty of excellent points in favor of same-sex marriage, and no good ones against it so far. We don’t need to rely on arguments that proceed from the same faulty premises, so why pretend religious freedom has anything to do with it?

Why "religious freedom" arguments about gay marriage fail

FACT: Catholics do NOT oppose birth control!

Last year, the Department of Health and Human Services ruled that health insurance plans would be required to provide preventive care services for women, including contraception, at no extra cost and with no co-pays or deductibles. This January, they announced that certain religiously affiliated organizations would have an additional year to comply with this rule, but they would not be exempt from the requirement. It is still possible for a religious employer to be exempted if it meets the following four criteria: it must have “the inculcation of religious values as its purpose”, it must “primarily employ persons who share its religious tenets”, it must “primarily serve persons who share its religious tenets”, and it must be a non-profit organization. Under these standards, a church or synagogue would not be required to provide contraceptive coverage through their employee health care plans. However, religiously affiliated hospitals, universities, and charities would still have to cover contraception.

In the wake of this directive, over a hundred Catholic bishops have spoken out and claimed that this requirement is an attack on their religious liberty and a violation of their conscience. Officially, the Catholic Church’s doctrine on birth control holds that separating the procreative element from heterosexual intercourse is a sin. This includes the use of condoms, birth control pills, injections, IUDs, and other artificial methods. Instead, the church approves of “natural family planning”, which involves reserving sex for the phases of the menstrual cycle when a woman cannot become pregnant. So, according to the church, it’s okay to choose to prevent pregnancy by intentionally having sex during a time of known infertility, but it’s not okay to choose to prevent pregnancy by medically or mechanically precluding the possibility of fertilization. It’s not entirely clear to me how that doesn’t encompass the technique of ensuring that an egg won’t be present to be fertilized when you’re having sex, but I’m sure they’ve justified it one way or another.

In any case, whether the requirement to cover contraception is against the beliefs of Catholics is largely irrelevant. The hospitals and colleges which would have to provide this coverage employ people from every walk of life and every belief system. These Catholic-affiliated organizations do not exclusively hire Catholics. We’re talking about hospitals and schools that all kinds of people go to, and all kinds of people work at. With this objection, Catholic bishops are demanding that employees of the University of Notre Dame, St. Joseph’s Hospital of Phoenix, and practically any religiously affiliated business, should not have the same access to contraception that any other employees would. Why should non-Catholics and non-believers be denied that coverage simply because they work for a business that’s associated with a certain church?

Further, does this requirement actually conflict with the conscience of Catholics? Their doctrine considers contraception to be sinful, and their leaders have condemned this directive, but what do everyday Catholics think? Do they, too, have a problem with birth control? No! A recent poll by the Public Religion Research Institute found that 49% of Americans overall agree that religiously affiliated colleges and hospitals should be required to provide health care plans that cover birth control at no cost. How many Catholics agreed with this? 52%, dropping to 45% among Catholics who vote. The difference in support for this requirement between Catholics and all Americans is negligible. A survey by Public Policy Polling confirmed this, finding that 57% of voters believe women employed by Catholic hospitals and universities should have the same rights to contraceptive coverage, and 53% of Catholics agree with this.

But how do Catholics themselves feel about the use of birth control? A 2011 report by the Guttmacher Institute found that out of all Catholic women who have had sex, 98% used contraception other than the church-endorsed “natural family planning” method, which only 2% of them rely on – “even among Catholic women who attend church once a month or more”. 68% use IUDs, hormonal methods, or male or female sterilization. Another 15% use condoms. The statistics are largely the same for Catholic women who are married: only 3% use “natural family planning”, and 72% use IUDs, sterilization or hormonal methods.

If that’s the case, then why are these Catholic bishops claiming it would violate their conscience if Catholic-affiliated businesses are required to provide access to birth control methods which a strong majority of Catholic women have already chosen to use? Why are they depicting this as an attack on Catholic values, when most Catholics don’t share those values at all? When Catholic views on this policy hardly differ from those of Americans altogether, there is no way this can be honestly characterized as something that has a disproportionate impact on Catholics.

So why are the media uncritically parroting and validating this plainly inaccurate narrative? Why is Reuters running a story titled “Obama risks Catholic vote with birth-control mandate”, when surveys indicate he isn’t risking the Catholic vote any more than the average American vote? Why is USA Today letting Archbishop Timothy Dolan use their opinion page to allege that this policy is “un-American” – a claim which, in light of recent polls, doesn’t even make sense? Why does the archbishop of Atlanta get coverage for saying that “The Church is going to fight this regulation with all the available resources we have”, when a majority of church members don’t consider this worth fighting against, and many of them are actually using the very birth control methods at issue here?

If this is supposed to be about respecting the conscience of Catholics, then why has everyone been focusing on the bloviations of a handful of bishops, while ignoring the millions of Catholics who disagree with them? How does that possibly respect their values?

FACT: Catholics do NOT oppose birth control!