Religious Liberty and the Ruling on Prop 8

by Matthew Raley Last week, the 9th Circuit Court of Appeals ruled that Prop 8's ban on gay marriage is unconstitutional. No surprise there. The real question is what will happen at the U.S. Supreme Court, and what the implications will be for religious liberty.

Some observations:

1. It is not clear how the Roberts Court will rule on Prop 8. The outcome will likely depend on Justice Anthony Kennedy, who remains the swing vote on many issues. I will be surprised if the court renders a sweeping decision on the gay marriage question. Look for a narrow one.

This is a weak position for traditional marriage supporters. A narrow ruling against Prop 8 has the effect of institutionalizing gay marriage in the U.S., where a narrow ruling in favor of Prop 8 merely keeps the issue in play.

2. Suppose the high court upholds the 9th Circuit's decision and gay marriage becomes the nation's new legal default. A church's liberty to sanction only marriages between a man and a woman comes into question, and the legal climate for this kind of liberty is very mixed.

In 2010, the high court ruled in Christian Legal Society v. Martinez that a public law school could refuse to recognize a religious group that did not abide by the school's anti-discrimination standards. The fall-out from that decision is being felt by Christians at Vanderbilt, a private university. The vice chancellor recently told Christian groups that they have to allow non-Christians to be members and even leaders of their organizations if they want official recognition. He said in a public meeting, "We don’t want to have personal religious views intrude on good decision making on this campus."

A rare moment of candor from a PC mandarin, and a glimpse of what life will be like if tweed totalitarianism gains even more power. There's religious decision making, and then there's good decision making. We just want you to make good decisions. That's all.

There are examples of this pushiness elsewhere. New York City recently expelled churches from using public schools on Sundays. (The Supreme Court refused to hear a challenge.) The Obama administration decided to force all organizations to provide health insurance that covers contraception, even Catholic institutions. Though the administration has wavered in recent days, it has shown what it really thinks about religious liberties. Catholic adoption agencies in Illinois are closing rather than comply with the state's new non-discrimination policy. A New York Times article about the controversy makes clear that religious liberty claims are insensitive and tiresome.

Some progressives clearly have an appetite to purge religion from civic, legal, and academic life. Not all progressives. There are those who agree that churches should not be forced to allow gay marriages, or to support any of a host of other choices sanctified by the vice chancellor of Vanderbilt. Such honest progressives recognize the importance of conscience.

So there is some ballast against those who want a purge.

In addition, recent infringements on religious liberty have to be balanced against the Supreme Court's unanimous decision last month that anti-discrimination employment laws must respect a ministerial exemption. The decision is sweeping, and may be a game-changer for churches.

3. The practical threat to religious liberty will not come from the suave bigotry of vice chancellors, or from gay marriage laws like the one Governor Christine Gregoire signed in Washington State this week. The threat will not come from homosexuals as a group, or from progressives.

The most practical threat is from lawyered-up thugs. In their mania for a religion-free society, radical activists will use lawsuits as a shakedown tactic. They will not need friendly Supreme Court decisions. All they will need is money enough to sue -- and they have plenty. They will move  from suing cities over crosses and nativities and public prayers to suing churches for "discrimination."

I have spent years in ministry opposing the attempts of the religious right to turn churches into centers of political activism. Demagoguery and money do not impress me. And if I have not countenanced toxic activism from the right, even though I'm a political conservative, I certainly will not roll over for the cultural left, with which I have no sympathy whatsoever.

I fear we are headed for a new low in American discourse, in which public debate is abandoned in favor of lawsuits. If so, the civil society that has made America strong will splinter, and the conscience of every person will be at the mercy of the best financed pressure group.

The California Court on Prop 8

by Matthew Raley There is only one issue that concerns me anymore.

I went through a conservative optimist phase in my not-so-distant youth, when I thought American society was salvageable by political means. I also went through a conservative pessimist phase, during which I groused about how days gone by were better than these.

I remain a conservative, but I follow the issues the way a sportsman follows athletes -- without a sense of personal investment. Today, I'm unimpressed with the teams of both right and left. Neither offers a coherent vision of what our culture should be.

The religious right is convinced that gay marriage is the tipping point for culture, where we shoot off the slippery slope into free-fall. So evangelicals across the country have poured resources into this battle appealing to the average American's supposed traditionalism.

Take that point of view apart.

1. The tipping point for our culture came decades ago. There was not a Christian campaign against no-fault divorce in California, the innovation that actually pushed the institution of marriage off its foundations. If evangelicals want state law to reflect marriage as God designed it, they should campaign for "One man, one woman, til death us do part."

Evangelicals won't be campaigning that way anytime soon because they've embraced the divorce culture. Statistically, as has been documented many times, there is no difference between the practice of evangelicals and other Americans. Anecdotally, I learned about divorce as a child by watching the splits of my parents' church friends.

Consider the consequences of so many broken evangelical families.

When the world says life is about personal fulfillment not personal holiness, we apparently agree. Christian counselors are sending couple after couple to the divorce courts on this basis -- and it's not as though this is a secret among evangelical church-goers. Our counseling center routinely helps couples who lost hope because of their Christian psychologists. In living this way, we have taught several generations of children that evangelical religion is about crying out to God on Sunday and being selfish during the week.

We have, indeed, manufactured the unbelieving majority in our country. The cynicism of young voters about traditional values was learned from church, not from Hollywood.

Gay marriage is not the tipping point. That point is long past.

2. Having entered the political fray with a fractured base -- a base that opposes threats to marriage in principle but that is under the thumb of family courts in fact -- the religious right has little option but to find enemies and blame them. That's elementary, abc stuff. If the base is not united, your tool is fear.

So the enemies are homosexuals.

This strategy is Pharisaical. Which is to say, it is the wrath of man leveraged to produce the righteousness of God. And like all works of the Pharisees, it is doomed to ignominious failure.

Gays are not my enemies.

3. Appealing to the self-righteousness of the average American is anti-Gospel. The Bible teaches that the average American does not need a Savior from the sins of others, but from his own.

So much for the team on the right. The left has its own problems.

1. Not so long ago, the left was portraying the family as an oppressive institution. Academically, many analyzed family relationships in terms of economic power. Politically and culturally, many more worked to eliminate the legal and economic incentives to marry and stay married, to "educate" young people out from under sexual "repression," and to stigmatize the traditional family as a relic of 1950s conformism.

To a great extent, the left has succeeded in blasting away the living culture of marriage. But now that the oppressive structure has been overthrown, it seems to have an Arcadian mythic elegance. I sometimes wonder if same-sex marriage is leftism, wistful for bourgeois tenderness, bringing a picnic to the evocative ruins.

2. Last fall the response of some to Prop 8's victory was to search out its supporters and harass them. This was condemned by many gay marriage supporters for what it was, thuggery. But there is still an unwillingness, most recently expressed by the New Hampshire legislature, to codify religious protections into law with regard to this issue, as if those who oppose gay marriage, as I do, should be compelled to endorse it.

This elevation of gay marriage over the health of civil society will inflame, not persuade.

The maneuvering of left and right leaves me cold because it obscures the one issue I care about.

Marriage is an expression of Jesus Christ's redeeming love for his church. I care that his power to transform and nurture is exhibited deeply in my relationship with my wife and sons. I care that his power is exhibited in the congregation I serve. I care that his power should reach people who at this moment may be antagonized by his name.

I'm grateful to the homosexuals who have come to the church, and those who've admitted me into their lives as a friend. In a time of rancor, I appreciate the chance to show respect and care even in the face of profound disagreement. I am confident that Christ can and will show himself in this way.

The California Supreme Court's decision yesterday contributes nothing to this overriding project.