Evangelicals should stop trying to legislate morality for the nation and tend to their own house
The First Amendment of the United States Constitutions opens with the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment of the United States Constitution says (among other things) “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
But what happens when the religious clause of the First Amendment and the citizenship clauses of the Fourteenth Amendment come into conflict, as in the case of same-sex marriage? Is it possible to uphold the civil rights of the LGBTQ community and still allow religious institutions to order their communities around traditional views of marriage without government interference or punishment? These are not easy questions to answer.
Congress, the Supreme Court, and state legislatures have tended to privilege the Fourteenth Amendment over the First Amendment but have appeased religious communities by offering exemptions. For example, in 1993 Congress passed the Religious Freedom Restoration Act affirming that “Governments should not substantially burden religious exercise without compelling justifications.” In 1994, Congress amended the American Indian Religious Freedom Act to allow for the “traditional use of peyote . . . for religious purposes. . . .” In 2014, the Supreme Court invoked the Religious Freedom Restoration Act when it decided that the arts and crafts store Hobby Lobby was exempt from the contraceptive mandate of the Affordable Care Act.
Last month Congress passed the Respect for Marriage Act. Joe Biden signed it into law on Tuesday. The bill codifies both the Supreme Court’s ruling in Loving v. Virginia (1967) legalizing interracial marriage and Obergefell v. Hodges (2015) legalizing same-sex marriage. The Democrat-controlled Congress felt the need to secure these rights after conservative Supreme Court justice Clarence Thomas, in his opinion in the Dobbs. V. Jackson abortion case, argued that the Court “should reconsider” the Obergefell decision.
The Respect for Marriage Act would not have passed the Senate without a religious exemption. A bipartisan group of senators led by Susan Collins (ME), Rob Portman (OH), Tom Tillis (NC), Tammy Baldwin (WI), and Krysten Sinema (AZ) negotiated provisions in the act that addressed religious liberty concerns. The bill Joe Biden signed on Tuesday protects same-sex and interracial marriage, but it also states, invoking the religious freedom clause of the First Amendment, that religious institutions such as churches, synagogues, mosques, and religious educational institutions “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of marriage.”
The religious exemption has been controversial. Writing in The Nation, Katherine Franke, a law professor at Columbia University, argues that the Respect for Marriage Act is a danger to civil rights. “Winning the right for same-sex couples to wed,” she writes, “has come at a very high price: signing up for a vision of the family, commitment, love, and care that domesticates our needs and desires into the traditional nuclear family.” Such a view of the family, she adds, “is anathema to the radical queer politics that sustained us before, throughout, and after the AIDS epidemic.” Evangelical “right-wing legal advocates,” Franke predicts, will use their victory to lobby for “including explicit and broad religious exemptions in almost any conceivable law.”
Franke may be correct. But I am not sure she fully understands just how divided the evangelical community is over the Respect for Marriage Act. Some of the “evangelical right-wing advocates” she references in her piece oppose the Respect for Marriage Act because it legalizes same-sex marriage. Period. Others oppose it because they believe the religious liberty clause to be too weak. They supported an exemption amendment from Utah Senator Mike Lee that would have protected the tax exempt status of institutions upholding a belief that marriage is between one man and one woman.
Albert Mohler, the president of The Southern Baptist Theological Seminary in Louisville, describes the religious exemption in the Respect for Marriage Act as “woefully inadequate.” He says the bill “dignifies” what is “prohibited in scripture” and suggests that somehow same-sex couples do not share in the same human dignity as those who embrace traditional marriage. In his response, Tony Perkins of the Family Research Council quoted Judges 21:25 (“In those days there was no king in Israel; everyone did what was right in his own eyes”), announced that the “(Dis)Respect for Marriage Act” is “a mockery of God’s word, and a danger to the nation,” and told his Twitter followers to “take action against” the Republicans who voted for the bill.” Evangelical pastor Jack Hibbs took to Twitter to call Joe Biden and the Democrats “decadent and reprobate” and remind them that “heaven is watching.”
At the heart of the criticism of the Respect for Marriage Act levied by the likes of Mohler, Perkins, and Hibbs is the idea that the United States was founded upon Christianity and should continue to privilege traditional views of marriage. This approach to history and its relationship to politics undergirds Mohler’s national conservatism and has been correctly defined by scholars as Christian nationalism. As conservative evangelical writer David French has noted, such views reject the civic pluralism on which the United States was founded, an outlook on democratic life that requires Americans to live together with deep differences.
Thankfully, not all evangelical Christians embrace the national conservatism of Mohler or the Christian nationalism of Perkins and Hibbs. The best evangelical responses to the Respect for Marriage Act stem from those affiliated—either officially or in spirit—with the National Association of Evangelicals (NAE), an eighty-year-old organization that represents forty Protestant denominations and thousands of churches, schools, and Christian nonprofit organizations. The NAE lobbied Senators for the religious exemptions included in the bill Biden signed into law.
In an effort to balance the First Amendment and the Fourteenth Amendment, these evangelicals concluded: “The NAE does not agree with the understanding of marriage expressed in this bill. But precisely because our beliefs are not shared by many of our fellow Americans, we welcome the additional protections that Congress provided in this bill for those who do not hold traditional beliefs about marriage.” The NAE’s official statement affirmed that “despite deep and significant disagreements, advocates of religious and LGBTQ rights can work together to reduce hostility between our communities” in a way that “opens new doors to respectful relationships and a more winsome gospel witness and ministry with all our neighbors.”
Amen.
It is time that all evangelicals follow the NAE’s example. Or as Catholic intellectual E.J. Dionne recently suggested, America’s born-again Christians should take a hard look at their failures on the marriage and family front. These failures include the prevalence of divorce, adultery, and pornography and a general refusal to accept the limits placed on our lives by lifelong commitments and responsibilities. It’s time to stop trying to legislate evangelical morality for the rest of the nation and tend to our own house.
John Fea is Executive Editor of Current
John,
But as Katherine Franke points out, the RMA itself “legislates morality” by assuming a model of the nuclear family rooted in heteronormativity. Why should we be willing to uphold a basically 19th century, bourgeois understanding of marriage that now includes gay people and but not uphold some other conception of marriage that excludes gay people? Each are particular, neither are universal.
One does not have to be Christian to uphold heterosexual normativity. Many post-Christian Victorians did that. Supporters of cultural change are always ready to invoke the 1st Amendment to silence anyone who happens to be a Christian and holds views they don’t like. Anti-Catholicism played a major role in the promotion of birth control and abortion, with advocates claiming that Catholics were trying impose their morality on non-Catholics.
To be clear, I don’t really have a dog in the fight. I think marriage is beyond saving through politics, but Dionne’s attack on marital disfunction in the evangelical community is a cheap shot. Would he say to his fellow liberals that we should stop trying to make all Americans pay for health care and just get our own liberal house in order, creating just and equitable private health care collectives as an alternative to both government coercion and private insurance exploitation ? Or how about “Right to Work” laws? If people want to work for non-union wages, we should let them and instead allow good liberal employers to pay good union wages? These are social, common goods that require social, common action and policies. As I said in my earlier post, the RMA wants all the social capital of traditional marriage and all the freedom of modern marriage. Marriage had its social capital by its distance from choice and options (aside from the initial consent to marry, a “free” choice traditionally deeply constrained by family obligations). Heterosexual marriage has already discarded traditional limits through divorce and birth control. Why perpetuate the delusion by adding gays to the equation? The whole process seems like an exercise in sentimental nostalgia, as Franke rightly points out in her article (e.g., Chuck Schumer’s tears). Again, some kind of “disestablishment” seems the only way out.
Also, I think Franke’s comments make very clear that gay marriage is far from the end game. She sees gay marriage itself as an assault on a more radical “queer” politics. This is an old debate. I recall it from my days in grad school in the 1980s, during the height of the AIDs epidemic when gays first began to try to mainstream their lifestyle, with the more radicasl among them rejecting mainstreaming as assimilation, conformity, etc. She also sees religious exemptions as a threat, an assault on the freedom of gays. Similar charges have been made against Christian adoption services that do not accommodate gay adoptions, and this has resulted in the loss of government partnerships. Do such religious groups deserve to be penalized? Do you really see a different trajectory on the marriage front?
Chris: I hope my piece did not come across as agreeing with Franke. My essay was a defense of pluralism. Franke seems to have no interest in living alongside people with traditional views of marriage. And I do think evangelicals need to get the proverbial log out of their own eye before they start legislating morality on marriage. (Perhaps the same applies to Catholics–I am not an expert on that front). Maybe Dionne did take a cheap shot, but he was right. And I do see the Mohler’s and other national conservatives/Christian nationalists as having an end game as well. This is why I support the NAE position.
Ok, John. I am not sure what position to take, and maybe it’s just the easy way out to see problems with both sides, which share the same harsh righteousness. I didn’t think you were necessarily agreeing with Franke, I just think you might understimate how “pluralism” contains within it a trajectory moving toward her position. In the 80s, some Christians (such as Cardinal O’Connor in NYC) fully supported care for AIDS patients and research for a cure while neither accepting the gay cultural agenda nor calling for the re-criminalization of homosexuality. “Tolerance” was not enough; AIDS activists demanded affirmation, and they eventually got it, though as Franke points out, in a domesticated form. Is there any historical reason to think that Franke is not the future? Think of how quickly the cultural conversation turned to “Trans” issues right after Obergefell. Does pluralism have any limits? Should we encourage Mormons to revisit their tradition of polygamy?
Does Pluralism have any limits? That is a legit question I have trouble answering in our current place and time. I lean towards Libertarianism on many issues, but it is true there are people who do not want to live and let live – such as those seeking affirmation instead of toleration from those with a traditional sexual ethic. Maybe “the getting our own house in order” will involve becoming like the Amish. We will be limited in opportunities within the culture, but (as of yet) groups are not protesting in Lancaster County, PA, over the traditional views of the Amish. Then again, the Amish are not seeking power within our country. They just live their lives in quiet obscurity. Polygamy? That is a good question in general, not just for the LDS. I will not open that can of worms any further than to peep in.
I appreciate the conversation above. It does seem to me that politics is downstream from sentiments, and that our system is designed–intentionally or not–to obey that principle.
Thus the fundamentally democratic foundation of our Constitution. Unlike constitutions that have metaphysically thicker, more defined foundations–such as Iraq’s (“Islam is the official religion of the State and is a foundation source of legislation: No law may be enacted that contradicts the established provisions of Islam”) or Ireland’s (“In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred”), ours has nothing below or beyond “We the people.”
If the people want plural marriage, the Constitution does not stand in their way. The Constitution can be changed, and there’s nothing to refer to outside of it when determining whether a law should stand. What that means is the American experiment is poised on a very slippery slope.
Once it was assumed in Christian circles that the way you changed the nation was heart by heart, person by person. That would eventually effectuate a “people” who would voluntarily support the kind of Biblical values, habits, and etc. it was assumed were necessary for the republic to survive. In the 1980s, Christians figured that was too much work, and decided to just force change through the various branches of government.
But that’s obviously a weak reed. Laws can be changed, and are. In a system incapable of referring law to anything other than the sentiments of the people, the people get what they want.
No matter what it is.
Chris: I think the limits of pluralism is another conversation. In terms of pluralism empowering people like Franke, you might be correct. This is why I said in the piece that most of these cases privilege the 14th amendment over the 1st amendment by dealing with religious liberty concerns in the bucket of “exemptions.” But my piece was on this particular issue–the Respect for Marriage Act. Yes, I do believe there are limits to pluralism. This gets back to Eric Miller’s idea of the “arena.” Arenas have walls and in the case of the last 5 years or so I have chosen to keep those who do not believe in science, truth, or basic facts outside the arena. I think this is where we come down here at CURRENT. Others might come down elsewhere. As far polygamy goes, I am not up to speed. but if it is a deeply held Mormon belief it must be considered with care. I am reminded of Washington University law professor John Inazu’s argument about the Bob Jones case:
https://www.washingtonpost.com/news/in-theory/wp/2015/09/16/want-a-vibrant-public-square-support-religious-tax-exemptions/
John Fea: “the limits of pluralism” actually isn’t “another conversation.” Chris is setting up a dichotomy where “tradition” stands on one side, “anything goes” on the other, and there’s no middle ground. You’re saying there is a middle ground.
You don’t need to elaborarte on the specifics of what that middle ground is at this point, but you do need to identify where, at least, you find these “limits of pluralism”? What is the source of those limits? From whence do they emerge? The Constitution? Something else?
Chris can point to several millennia of western culture, including the concept of marriage held by the writers of the Constitution, of our various state Constitutions, and the delegates and voters who empowered them, and say, “This is what marriage *is.* It includes certain elements and excludes others.” And, as a historical question, I assume you agree with him.
You’re defending the acceptance of an innovative view of marriage, one of exceedingly recent origin, but you’re assuring him we don’t need to worry about innovations beyond this one. I don’t see what the grounds are for that assurance. Since Chris is asking, I think you owe it to him to at least point to where you think the brakes are located.
As you can see from my comment above, I don’t believe there are any brakes acknowledged in our fundamental law, other than what “We, the people” might want. Chris is right that we’re on a slippery slope now; he’s wrong if he believes we ever weren’t on it.
I have no idea where the limits are. What do you want me to do, John–publish a list of what’s acceptable and what’s not in a pluralist society? But we are talking here about the Respect for Marriage Act and I have made my case (or at least the NAE had made its case). Slippery slope? Perhaps. Of course I will also defend religious institutions to define marriage in the way they want to define it without government interference.
No, not specifically what the limits are, but, rather, from whence they emerge, what the principes are that govern the system, as it were.
When the Iraqi Constitution says, eg, “No law may be enacted that contradicts the established provisions of Islam,” it announces that there are limits that inhibt the legislators and the courts from enacting whatever laws they wish, and it tells us the source of those limits. (Even that’s not as absolute as it might seem, as were a “liberal” form of Islam ever to develop and dominate, similar to liberal Protestntism, what the “provisions of Islam” were understood to be could change significantly.)
In America, as you know, various powers or forces have been pointed to as establishing the realm where limits would emerge from:
governors
Providence/the Holy Spirit
Enlightenment/science
natural law/the Bible
progress
originalism
And so forth.