August 1, 2013 8:00AM

Pro‐​Marriage‐​Equality, Pro‐​Religious Liberty

Ryan T. Anderson, one of the most articulate advocates for the "traditional" view of marriage, points out at NRO that extending marriage to same-sex couples potentially endangers the religious liberty of those who disagree with such a policy. Particularly given a Supreme Court ruling stating that the only purpose and effect of differing treatment of same-sex relationships is to "degrade," "demean," "disparage," and "injure" them, those who believe in "traditional" marriage--let alone those who think homosexuality is morally wrong--may rightly fear legal marginalization.

While I obviously disagree with Anderson's views on gay marriage, his concerns about a slippery slope from equal protection to an enforced political correctness are not unfounded. It wouldn't be the first time that overzealous "equality" advocates invaded individual liberty.  Senator Ted Cruz recently alluded to severe consequences from other countries' thought police.  “Christian pastors who decline to perform gay marriages," he warned, "who speak out and preach Biblical truths on marriage” may be prosecuted for hate speech. We don't have to look far to see such trends; take Canada's human rights commissions (please!).

And even in these United States, Anderson notes:

The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex “commitment ceremony.” Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed-and-breakfast in Illinois who declined to rent their facility for a same-sex civil-union ceremony and reception were sued for violating the state nondiscrimination law.

This is absurd. Neither the federal nor state governments have any business punishing or rewarding Americans based on their beliefs, and private individuals should not be forced to behave in a way that violates their constitutional rights -- or to have to choose between, say, their medical license and their conscience. Even if you hold, as I do, that states, if they're involved in the marriage business, should be required to grant marriage licenses to same-sex couples, not only should clergymen not be required to perform same-sex marriages but private businesses shouldn't be forced to be involved in them either.

Along with religious institutions, businesses that require expressive activity on the part of the service provider are easy cases--as Cato argued in its amicus brief in the case of that New Mexico wedding photographer.  But "non-expressive" organizations don't check their religious (or other) liberties at the for-profit door--as we're finding with Obamacare's contraceptive-mandate litigation.

Now, it's a different case where the government is involved: as with marriage itself, the government (and its agents) has to treat all citizens equally under the law. It can't refuse contracts or employment to people who are opposed to same-sex marriage, but it can require its contractors not to discriminate against gay couples in the services that they provide. That is, if a private organization, even one with an explicitly religious mission, voluntarily takes public money to serve the public at large, the government doesn't violate its religious freedom when it requires that they provide those services in an egalitarian manner. This is similar to the idea that the government can indeed limit the speech rights of policemen or soldiers or other public employees.

That does lead to some unfortunate results, like the CDC-funded wellness counselor who was fired after she referred someone in a same-sex relationship to another counselor--or, more famously, Catholic Charities of Boston getting out of the adoption business because the state of Massachusetts required it to place children with gay couples.  (There seems to be some factual controversy on the latter; my point relates to taxpayer funding: if Catholic Charities could've operated its adoption program without government funding, it should've been allowed to, and indeed Massachusetts should encourage a plethora of private adoption agencies.)

Of course, that brings us to the ever-present concern about the government creating problems by growing too large and crowding out civil society. As I wrote about the contraceptive-mandate cases earlier this year:

This is just the latest example of the difficulties in turning health care — or increasing parts of our economy more broadly — over to the government. As my colleague Roger Pilon has written, when health care (or anything) is socialized or treated as a public utility, we’re forced to fight for every “carve-out” of liberty. . . .

The more government controls — whether health care, education, or even marriage — the greater the battles over conflicting values. With certain things, such as national defense, basic infrastructure, clean air and water and other “public goods,” we largely agree, at least inside reasonable margins. But we have vast disagreements about social programs, economic regulation and so much else that government now dominates at the expense of individual liberty

But whether government is big or small, individuals and private organizations who aren't at its trough should never be limited in how they express their beliefs--no matter how much Justice Kennedy (or Cato, or anyone else) disagrees with them.