Can Religious Freedom Survive Same-Sex Marriage?

Over the weekend, many newspapers ran an Associated Press story by religion correspondent Rachel Zoll, about the emerging conflicts between same-sex marriage and religious freedom—such as are exemplified in the unfortunate decision last week by the New Mexico supreme court in Elane Photography v. Willock .  I was among the sources for Zoll’s article, which was quite well done—I certainly have no complaints, as I was paraphrased accurately, quoted (I think) to good effect, and nothing was either taken out of its original context or placed into a new one that would cast my views in a bad light.  In short, I’d like to thank Rachel Zoll for some good reporting here.

Still, when one (inevitably) says more than a reporter can use, one wishes, well, that more had been used.  I answered Zoll’s questions by e-mail over a month ago, and just for the record (and because two can be journalists in a case like this), I reproduce those questions and answers in full here.  Zoll had read an essay I published at Public Discourse in June, and this provided the backdrop to her questions.

Zoll : Would it be accurate to summarize your argument this way: that the only sound way to protect religious freedom is by defending traditional marriage?

Franck : I think it is the only safe bet for religious freedom.  One can imagine it is logically possible for same-sex marriage to be established, while those who believe it is not marriage are fully protected in their religious freedom to act on that belief.  But there are scores of millions of Americans who would choose not to recognize same-sex “marriage” as the real thing, if they were fully free to choose, as employers, educators, landlords, providers of goods and services, social service providers, and so on.  Full protection of such freedom would create such a honeycomb of “recognition here, but not there” that advocates of same-sex marriage would find it intolerable.  So far all signs are that those advocates will not tolerate such deviations from the “new normal” they wish to create.  This is why robust religious freedom protections have regularly failed almost completely when state legislatures have enacted same-sex marriage laws.  For same-sex marriage advocates, victory means a new moral consensus, which seems more important to them than other people’s consciences.

Zoll : In your view, are the scholars you mentioned in your article [Robin Fretwell Wilson and Douglas Laycock, both also interviewed by Zoll for this AP article.—MF] undermining efforts to uphold one man-one woman marriage by focusing on exemptions for religious groups as a way to protect religious freedom?

Franck : I am sure the scholars I mentioned mean well.  In some cases, however, it might encourage a wavering legislator to vote for same-sex marriage if he or she is concerned about religious freedom and is persuaded that some token or partial “protection” of it makes that vote easier to cast.  And if only “religious groups” are given protection, we are a long way from full, robust protection for religious conscience, which belongs to everyone who can be a moral agent: individuals, groups, churches, ministries, nonprofit-sector corporations, and for-profit corporations too (as in the case of Hobby Lobby in the HHS mandate controversy).

Zoll : In your view, is there any value for faith groups to pursuing religious exemptions as a stand-alone effort—meaning independent from defending marriage?

Franck : In my view, such efforts are a rearguard action retreating from a field one has surrendered.  But we have not lost the fight for the truth about marriage, and surrendering the field is premature.  I continue to hope that it will never finally be necessary, and I work to make that hope a reality.