Marshall Breger: Gay Activists vs. the First Amendment

By | Oct 04, 2011

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.

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