Gay Activists vs. the First Amendment

Whatever the ultimate success of the movement for same sex marriage, one would hope that its adherents would be sensitive to the political and religious rights of their opponents. This does not seem to be the case.

Proposition 8, a successful voter-initiated California constitutional amendment that recognized only marriages between “one man and one woman,” has prompted a great deal of intolerant behavior on the part of same sex marriage advocates. The proposition’s opponents created a “California Against Hate” website that “outed” contributors to the “anti” campaign, using a state election law that requires political campaigns to list their donors. The result was that some donors were forced out of their jobs. The website eightmaps.com—whose organizers tellingly remain anonymous—went as far as providing aerial views of the donors’ homes. Many of those listed found their homes and cars defaced. In some cases, people were physically attacked.

These incidents reminded us of the wisdom of the 1963 Supreme Court ruling that struck down an Alabama law requiring disclosure of the NAACP’s membership list. The Court found that the disclosure would “chill” the freedom of association of NAACP members. Similar principles are involved with the Proposition 8 donor list.

Unfortunately, it appears that the goal of many gay activists is to not only transform our understanding of marriage but to delegitimize opposition to their social agenda. This ineluctably means restrictions on speech. As Marc Stern, the acting co-executive director of the American Jewish Congress, has urged, “tolerance ought to be a two-way street.” But that dictum does not seem to hold when applied to social conservatives and traditional marriage. In Canada, a Protestant minister who distributed a bumper sticker with Biblical messages condemning homosexuality was fined under Canada’s hate laws. And in Great Britain, an Anglican bishop was fined $100,000 for refusing to hire a gay man as a youth minister.

In the United States, where free speech is constitutionally protected by the First Amendment, the news is not much better. After the Women’s Studies Department chair at William Paterson University in New Jersey sent an unsolicited invitation in 2005 to watch a movie with gay and lesbian themes, a student employee asked not to be sent material concerning such “perversions.” He was disciplined. In 2005, the City of Temecula, California was authorized to treat the terms “family values” and “natural family” as hate speech. In 2008 a photographer who refused to photograph a same sex commitment ceremony was found to violate the New Mexico Human Rights Act and charged $6,600 in attorney’s fees.

In Boy Scouts v. Dale (2000), the Supreme Court ruled that New Jersey could not use its human rights law to compel the Boy Scouts of America to employ an openly gay man and gay rights activist as a scout leader because the Scouts’ First Amendment right to “expressive association” includes the right to define the content of the organization’s agenda. But the collateral consequences have been severe. Philadelphia revoked the Scouts’ lease to a county-owned building they had used since 1928. Scouts were denied access to a city-run marina in Berkeley and a park in San Diego. In Connecticut, they were excluded from participation in a state-sponsored public employee charitable fund.

The approval of same sex marriage by the District of Columbia City Council—signed by Mayor Adrian Fenty—this past December underscores the issue. The Catholic Church has stated that without a religious exemption in the bill it would be forced to withdraw from city contracts to assist the poor. Already Catholic Charities in Boston closed down its adoption services because it refused to place children with same sex couples. In 2004, Catholic Charities in Maine lost funding for child care and development programs because it would not pay benefits for domestic partners. And in San Francisco, the Salvation Army lost its social service contract with the city because it refused to provide benefits to its employees’ “domestic partners.”

Central to these attempts is the view that opposition to same sex marriage of any kind is so evil as to lose any of our traditional constitutional protections. This may be our constitutional future, but it has certainly not been our constitutional past. As Judge Richard Posner, of the United States Court of Appeals for the Seventh Circuit in Chicago, has astutely noted, “people do not have the right to prevent criticism of their beliefs or for that matter their way of life.”

It would also mean denying the religious freedom of those whose religious beliefs require opposition to, or at least refusal to facilitate, same sex marriage. This development suggests another shift in our constitutional tradition, which has in the past sought, where reasonably possible, to accommodate diverse religious beliefs. We may well be reaching the stage where the gay community’s demand for communal affirmation trumps all First Amendment values: religious freedom, as well as freedom of speech, press, association and petition.

This rejection of civic pluralism, ironically in the name of civic equality, may have inadvertent and unfortunate legal consequences. As animal rights groups like PETA become stronger, will kosher slaughter be outlawed? Justice Harry Blackmun apparently considered this an open question. Can pro-Israel banners be outlawed in parts of the country with a Muslim majority? Europeans seem to be inching in that direction.

Even if they think that traditional religious beliefs about marriage are wrong, if not bigoted, the politically savvy in the gay marriage community would be wise to avoid such open confrontation. As University of Michigan law professor Douglas Laycock has pointed out, it is “not in the interest of the gay and lesbian community to create religious martyrs” while promoting the cause of same sex marriage.

Marshall Breger is a professor of law at the Catholic University of America.