Religious Freedom, Our Founding Fathers and Marriage Equality

0479.3LWe all learned in elementary school that the Pilgrims came to America so that they could practice their religion without persecution. They were willing to put up with hardships as they left their homes and countries in order to live their religion. We take great pride in these stories of America as a haven for those seeking freedom.

The most celebrated proponent of religious freedom in the colonial era was Roger Williams. He purchased land from the Narragansett Indians, where he then set up a new colony which established religious liberty and separation of church and state as founding principals. This colony became Rhode Island which was a haven for religious minorities, which included Baptists, Quakers, Jews and others.

A century later his ideas inspired the founding fathers to include freedom of religion in the Bill of Rights as part of the First Amendment to the Constitution.

From its inception in American history, freedom of religion actually meant freedom from the dominant religions of the time. The religious refugees were escaping mainstream European and Christian religions such as the Anglican church or the Catholic church.

Stop and think about that for a minute. The first Amendment was written to protect people from forced participation in mainstream Protestantism. It was meant to protect minority religions and minority religious viewpoints from the majority.

Frequently, religious values seep into our legal system. This is inevitable, and even desirable, because religious values are often human values. ‘Thou shalt not kill’ makes sense regardless of what religion you adhere to. ‘Thou shalt not steal’, or ‘bear false witness’, have implications on a society in general, that make them subject to legal codification.

On the flip side, there are numerous laws that actually restrict religious practice. Mormons in the late 1800’s experienced this when the federal government imprisoned church leaders for practicing plural marriage. Native Americans experienced this when they were forced to fight for their right to use a hallucinogenic drug, peyote, in their religious rituals as they had been doing for hundreds of years. Jehovah’s Witnesses experience this today when their children are forced to receive blood transfusions in life-threatening situations, as do Christian Scientists when they are forced to allow medical treatment of their children. Muslim taxi drivers in Minnesota are forced to transport people who carry alcohol against their religious objections. Muslims and Fundamentalist Mormons are both restricted from legal polygamy and from marrying under-age brides. All of these are cases where the adherents have every right to their belief, but they are restricted in their practice. The justification for these restrictions is that a religious practice is violating the rights of another person or harming society.

‘Religious liberty’ has never meant the right of a majority religion (or religions) to impose religious practices or religious rules on non-adherents. In America, we can be sure that Catholics can’t make birth control illegal, even though they are the largest religion. We can be sure that if Muslims become a dominant religion in any community, they still can’t require all women to cover their heads or impose Sharia law. We can be sure that if Amish are a majority in some community, they can’t impose their lifestyle on non-Amish living there.

In the case of marriage laws, there are many dominant religions who define marriage as one-man/one-woman. However, there are several religions who define it differently and bless same-sex marriages. The irony is, if a religious freedom argument were relevant, then it would actually work in favor of same-sex marriage. The Supreme Court will never be able to justify forcing any religion to adopt a practice of performing marriages that it does not believe in. But, more importantly, if religious freedom is grounds for interference around marriage, the Supreme Court should protect those minority religions that do want to perform same-sex marriages (as well as those that don’t). This is consistent with the principles of religious liberty and separation of church and state that inspired our founding fathers to write the first amendment–in order to protect minority religions from the dominant religions.

So far, religious liberty has not often been used in courts as a rationale for same-sex marriage. However, the United Church of Christ did exactly that last year in a lawsuit in North Carolina when they pointed out that their religion freedom was being restricted by the same-sex marriage ban. (This argument is now moot due to the recent Supreme Court decision.)

Meanwhile, marriage equality opponents may ultimately find that this ‘religious freedom’ argument is counterproductive to their aims.  Religious freedom will only add more weight to marriage equality. The constitution was set up to protect us from a state religion. Even if there were only one or two religions in the USA that practiced same-sex marriage they would be entitled to the same protection as all the other religions.

So my advice to marriage equality opponents is this: Don’t go there. Claiming that the definition of marriage should conform to religious definitions not only helps the case for marriage equality, but it opens the door to recognition of polygamist marriages. Our current laws restricting marriage to two adults are based on the secular observation that monogamy is better for society. The benefits to society were not found to be sufficient to prevent interracial or same-sex marriages, so the court had to eliminate those bans based on equal protection. However, the ban against polygamy does have some very strong and cohesive arguments to help justify it. These include the following:

—If practiced widely, polygamy leaves too many unmarried men, which is destabilizing for a society. Basically, the rich and powerful get all the wives, leaving a population of unsatisfied men who are motivated to disrupt the system. This is the outcome for most young men raised by fundamentalist Mormons. They handle their surplus of men by chasing away many of their teen boys, who then become vagrants with no family.

—No one fundamentally needs to enter a plural marriage. There is no primary orientation as in the case of same-sex marriage. Everybody in a polygamist marriage could enter a happy monogamous marriage that matches their orientation. Therefore, as individual rights and equal protection go, a ban on polygamy doesn’t demonstrate the same level of discrimination when compared to same-sex marriages.

—Research could determine if children of polygamist families, as a whole, are at a disadvantage compared to other children.

—Women in polygamist societies are almost universally disenfranchised and have little choice in their marriage decisions.

—There are tons of restrictions to marriage. You can’t marry close family members. You can’t marry children. You can’t marry people who are married to somebody else. These are fair rules. There are few people who would argue that there should be no restrictions.

All of these arguments against recognizing polygamy could get trumped by a strong appeal to religious freedom. There would be a much higher standard required to show that plural marriages are really causing harm to society in order to justify a ban. I don’t think that is where the LDS Church and the evangelical Christians are hoping their fight will lead, but their own actions could help push it there.

Another factor to consider is the role religious freedom plays in different regions of the world. Consider the regions where Mormonism is thriving. North America, Europe and Latin America are all pluralistic societies that are very conducive to the growth of Mormonism. These are the countries with the most religious freedom. They are also the countries where LGBT rights and marriage equality are making the fastest advances. This is no accident. Religious freedom and LGBT rights go hand in hand. In contrast, Muslim countries, by forcing their religious beliefs into the public sphere, make the presence of Mormonism impossible. They also make the pursuit of LGBT rights impossible. Africa and the former Soviet Union are two regions where religious liberty and LGBT rights are being severely curtailed. The same forces that are making life difficult for LGBT people in Russia and Nigeria are also hurting Mormons. These are the regions where Mormons are truly at risk for persecution due to their religion. None of this is an accident. A real pluralistic society embraces genuine religious freedom which also ends up protecting LGBT people and their rights. This is beneficial to Mormons. This is beneficial to LGBT. It is a life or death matter for both communities. We need to unite and fight for religious minorities and sexual minorities in those countries where both Mormons and LGBT people are persecuted.

So remember this: freedom of religion is here to protect you from my religion, AND to protect me from your religion. Remember that we live in a country that doesn’t ban birth control or pork. We live in a country where women can walk in the streets without their head covered and can drive cars. We live in a country that does not let any religion dictate our rights or force religious practices on non-adherents. We want it to stay that way. Let’s rejoice that we live in a pluralistic society. Let’s rejoice that different religions can have different beliefs about same-sex marriage and so many other issues and that no one can force their beliefs on others. That is what religious freedom really means.

6 comments for “Religious Freedom, Our Founding Fathers and Marriage Equality

  1. Carole Warburton
    June 28, 2015 at 5:18 pm

    Thanks for sharing this well-reasoned and thought out argument.

  2. Janell
    June 28, 2015 at 7:18 pm

    Bravo, Dan. Thanks for bringing reason and logic to the table, and reminding me why I love being a Canadian 😉

  3. Holly
    June 29, 2015 at 12:29 pm

    Thank you for sharing you insightful point of view. You make some very good points that not all have considered. I have read over you article thoughtfully, and agree with some points strongly. However, I have to disagree strongly with your comparison of same-sex marriage vs. plural marriage, and how it harms society… I would have to strongly disagree with you on the point that society is not harmed by this decision, for a couple of reasons. First, have the rights of the children been considered in the equation. In the case of same-sex marriage, this forces a set of confusing gender identity onto the children who are being raised in these relationships. Children are biologically conceived by a mother and a father. Period. We can pretend this fact does not exist, and hide from it, but that does not change the facts here. Biological conception should entitle the child to the right to a mother and a father, who serve as role models to help children have clear gender roles. This is important to many of us, but erases those roles. This does influence and affect society, and for those who have strong beliefs, this is damaging to society. there are other concerns I have with these arguments, but I don’t have time to write them all now, so I will have to end here.

    • Daniel Parkinson
      June 29, 2015 at 4:54 pm

      Some people think it is very important to have a parent of each gender. Some people don’t think it is important. So we have to look at the research. The research overwhelmingly shows that children raised by same-sex parents do as well as children raised by opposite-sex parents. Marriage equality opponents tried to argue in court that children were damaged, but the research they used to support it was terrible with false conclusions that weren’t supported by their own data. The courts were forced to throw it out….and this happened repeatedly in the Courts of Appeal and the Supreme Court. If they had been able to show that it was bad for the children, they may have won their fight, but they repeatedly failed to show that, because the research overwhelmingly shows that children of same-sex parents do very well. You might believe it is better to live with 2 opposite-sex parents but that is a religious belief and we have to base these policies on social science research and not on a certain church’s religious beliefs.

      Meanwhile, there are lots of groups who do have children with very poor outcomes according to research. Children of alcoholics, children of people with mental illness, children of people with certain disabilities, children of people in poverty–all have a large body of research showing poor outcomes. Meanwhile nobody is arguing that those people should be restricted from marriage, nor should they. So why should we subject gay and lesbian people to these arguments, especially when the research does not support it at all.

      Another point to keep in mind is that most people aren’t raised by 2 biological parents. This is not because of gay marriage. This is a reality in our society that won’t really be impacted one way or the other by marriage equality.

      Another sad reality, is that there is a huge number of children who can’t find adoptive homes because they are already older or else have a disability. These children are shipped from foster home to foster home, and are often neglected and abused. Gay and lesbian couples have shown a bigger willingness to provide a stable home for these children, and it is terrible that these children are being denied that possibility. Ask any social work who works in the foster care system what these children need, and they will tell you that they need a stable home of ANY configuration. A safe and loving home would be of enormous benefit to so many hard to place children.

  4. Scott
    July 2, 2015 at 9:10 am

    I’ll first commend you on your post. A fairly poignant argument on the issue. However there are a few points I am at odds with and a few things you haven’t taken into consideration.

    Most of this boils down to a single point you made:

    “No one fundamentally needs to enter a plural marriage”

    This is the most dangerous line of thinking and it’s exactly why people have such an issue with gay marriage. First off, no one needs to enter into any marriage at all. The motives behind marriage has varied throughout history, but it’s not like there is some intrinsic need we have marry. But, as you noted, we understand that marriage is good for society. We also know the child rearing is good for society. So we give tax breaks to those institutions. You would say those things are unrelated. I would argue they are explicitly connected. We created laws because we know that heterosexual monogamy is the most ideal circumstance for child rearing. Regardless of age and infertility which are the severe minority, we create laws that better our nation. Look no further than the ghettos of this country where crime rates are high and you will find the biggest percentage of single parent homes. The government wants stable homes for children. You might argue that a same-sex couple can be just as stable as a heterosexual couple, and that might be true is come cases, but its not the point. The point is that we make laws to help our nation. Keeping the traditional definition of marriage isn’t hurting anyone. But people would make it seem like they are suffering, but it feels more like a red herring.

    Is marriage about society, property rights, child rearing, tradition and stability? Or is it about love, attraction, desire and perceived equality? We didn’t create laws because people love each other. Love has nothing to do with it. in fact, 60% of marriage in the world are arranged. Love has the least amount of bearing on why marriage is important. And the problem with this entire issue that the shift in marriage has moved from child rearing to love. And love is the weakest basis to make laws on. Love is fleeting. We can love anyone and anything. Love is so undefined that it is so mind boggling that we would try and put so much trust in it. And its this logic that makes people spout slippery slope arguments. The bridge to those arguments are so much shorter now.

    Notwithstanding all of this, there is another issue that no one approaches. Lot’s of people find homosexuality disgusting, unnatural and immoral. It’s not that these people were raised to hate gays or brainwashed by religions. Its just some some people don’t mind it and some people do. The reason this is important is that in most other cases when we are repulsed by something it’s usually because it’s something bad, like incest, pedophilia and abuse. I’m not saying homosexuality is the same as those thing, but it gets lumped together with those things because for a lot of people it evokes a similar distaste for it. So remember you’re not just trying to ideologically trying to convince someone that it’s okay, but also bypass a physiological reaction as well.

    Anyway, I think you’re right on a lot of things, but this issue is so convoluted and confusing that I don’t think we’ll ever collectively be for or against it.

    • Daniel Parkinson
      July 2, 2015 at 10:32 am

      Are you saying you would enter an arranged marriage? Are you saying people should not decide who to marry based on love? I don’t think you are in synch with the rest of the country.

      As far as benefits and harms to children, the opponents to marriage equality brought that up in the courts repeatedly in every case that was argued and NOBODY was able to demonstrate any harm to children from marriage equality and in fact they were able to argue successfully that marriage equality benefits all the children involved, by giving them better protections.

      Your assertion that nobody suffered from the inequality is frankly ignorant and cruel. You are ignoring the people who were separated from their beloved partner and deported because their partner could not sponsor them. You are ignoring the US citizens (including me) who had to move abroad because we could not sponsor our spouse (to whom I was married by Canadian law). You are ignoring the thousands of dollars a year that I had to pay extra in taxes compared to 2 married people (I know this because I saw the change when I gained my equality). You are ignoring the people who lost their homes and possessions after the death of their partner and were excluded from their pensions, their life insurance and their estates. You are ignoring the people who were not allowed to visit their beloved life partners in the hospital when they were sick. You are ignoring the people who were denied health insurance. You are ignoring the children who were raised by two parents but were removed from the home of the surviving parent after a tragic death, because that parent had not been allowed to adopt. Would you volunteer for any of those discriminations? I don’t think so. Don’t tell me we didn’t suffer.

      When you mention that I disgust people you point out exactly why we need to be protected by anti-discrimination laws. What if you lived in a world where people felt free to openly say that you disgust them, and exclude you because of it?

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