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Special "Protections" For a Marginalized Majority?

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The drive for same sex marriage stalled in New Hampshire over insistence by Governor John Lynch that the legislation must include strong protections for religious institutions and individuals who oppose such unions. This tactic – now adopted by gay marriage advocates across the country – may provide office holders with political cover but will offer very little legal security for defenders of traditional marriage. Legislative “conscience” provisions won’t survive lawsuits by agitators or judgments by activist jurists. If gay marriage is a fundamental human and constitutional “right,” then how could faith-based groups or religious individuals legally discriminate against the exercise of that right? If a florist declines to provide services to a same sex wedding, or a religious club refuses to rent its facility for a gay nuptial, there will be immediate and aggressive legal action to guarantee “equal protection of the laws.” If laws (like the provisions endorsed by Governor Lynch) authorize discrimination against same sex couples, it’s easy to envision judicial decisions invalidating them as unconstitutional. It’s now a well-established point of law that theological doctrine can’t protect institutions or individuals if they discriminate on the basis of race. In Bob Jones University vs. the United States (1983), the Supreme Court held that even “sincerely held religious beliefs” couldn’t justify a policy against interracial dating and upheld federal efforts to strip the South Carolina school of its tax exempt status. If gay identity is equivalent to racial identity (a key contention of the gay marriage movement), logic requires that unequal treatment based on sexual orientation should receive no more sanction than unequal treatment based on race.

Of course, the proper response to such logic is the obvious assertion that race and sexual orientation are not comparable: even if homosexuality stems from innate urges that the individual can’t control, the expression of those impulses (like all sexual behavior) involves elements of choice. The acceptance of gay marriage as the equivalent of traditional marriage will, however, make any such arguments moot. Once the government declares that there is no meaningful difference between the union of two men, two women, or a man and a woman, and affirms that banning gay marriage makes no more sense than banning interracial marriage (the key contention of state courts in Iowa, Massachusetts and elsewhere) it embraces the idea that sexual minorities deserve legal protection in the same sense that racial minorities need it. For religious groups (whether representing minorities or, currently, majorities) the choice to maintain distinctions between same sex unions and traditional marriage – the choice to discriminate, in other words – will receive no such protection, any more than the racial discrimination preached by fringe religious groups (like the so-called neo-Nazi “Christian Identity” movement) deserve protection from government efforts to suppress or at least discourage their bigotry.

Moreover, the whole concept of carving out special “religious protections” (reported as a major trend by Peter Steinfels in the New York Times and now favored by leading gay activists as part of their push for same sex marriage) reflects the certainty that faith-based organizations will become an immediate and prime target of the gay rights movement. Regardless of any legislative efforts to protect dissenters in their exercise of conscience, the granting of government sponsorship of same sex matrimony will clearly put the force of bureaucratic power and social sanction on the other side. Instead of tolerating and protecting the minority rights of that tiny group that wants to live in same sex couples (through, say, the institution of civil unions), activists now propose to tolerate and defend the majority that rejects the idea of gay marriage. In other words, traditionalists are supposed to accept the fact that, despite clear-cut majorities in election after election and poll after poll, we must accept a new status as a fringe-group minority with special protections – until judges come along to strip away those defenses and to force compliance to the new tyranny of “marriage equality,” regardless of the doctrines of long-standing faith tradition (and secular common sense) that we may continue to uphold.

The prospect threatens not only the future of the institution of marriage (by altering that institution beyond recognition) but the core idea of this Republic--that legal standards and social norms should reflect the preferences (or at least the consent) of the majority of the people.

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