Editor's note: A version of this column was first published online-only on Wednesday.
The Chicken Littles of the evangelical Christian right who cry that the sky is falling on our godless tolerance of gayness raise a couple of issues I find potentially legitimate.
First, the labor commissioner in Oregon on July 2 fined a bakery $135,000 for refusing to sell a wedding cake to a gay couple.
Oregon law plainly provides that commercial service must be extended equally to protected groups, including homosexuals.
It seems to me that the matter poses a potential collision on the interpretation of constitutional principles.
Oregon's law grants to gays the U.S. Constitution's equal protection under the 14th Amendment. But the husband and wife running the bakery contend the law violates their First Amendment right to free religion.
One would suspect the Oregon Court of Appeals, which will next get the case, to affirm the state law and the labor commissioner's ruling. After that, the question might go to federal court. A scenario could then exist by which the question could wend its way to the U.S. Supreme Court.
I would prefer and be happy with case law protecting a gay couple from discrimination in such a situation. I would be less happy about, but satisfied with, case law protecting the bakers' right to decline to provide this particular service because of religion.
I understand the importance of principle. But a wedding cake is not the Gettysburg I'd choose in the culture war.
Meanwhile we have seeds of another potential issue: Does this new universal right of two persons of the same sex to marry mean that a church-affiliated college could be made to grant the same benefits to gay married students as to other married students, mainly in the matter of married-student housing?
To be more precise: Could such a college eventually lose its religious tax exemption--and thus be made to pay taxes on property and profit, and lose tax deductions for donations, and thus live in a much tougher financial universe--if it persisted in denying those benefits in a way that the Internal Revenue Service or the federal courts might deem discriminatory?
I didn't invent the question. Associate Justice Samuel Alito asked it of the U.S. solicitor general during oral arguments in the gay-marriage case. And the solicitor general said he would not deny that such an issue could arise.
At worst for religious colleges that discriminate against gays, they might eventually be made to pay taxes if they insisted on continuing that discrimination.
But we are years away from a full exercise of that debate, much less its resolution.
The Supreme Court took great pains to explain that it was granting merely a right to marry for gays. So there exists under that ruling no basis for the IRS, which has enough trouble already, to go after religious colleges over their married-housing policies.
But it is entirely possible that a same-sex married couple would enroll at a religious college, get denied married housing and go to court. And it is possible that one federal district court would rule that the Supreme Court precedent allowed a religious college that latitude and that another federal district court, confronted with the same question in its district, would say it didn't. Then, if regional circuit courts of appeals ruled differently, the Supreme Court would need to take the case.
There is the Bob Jones University example. It had a brazen policy outrageously couched in supposed religion that said students could not attend there if they were married to, or even dated, someone of a different race.
The IRS took the South Carolina school's tax exemption away. Then the Supreme Court ruled that the country was so strongly committed to ending racial discrimination that it was permissible for the IRS to take that action.
In time, that being the year 2000, Bob Jones relented on its racist policies.
Then there is the better example of the Catholic Church and the University of Notre Dame. The Catholic Church insists that gay marriage is wrong. But Notre Dame, a Catholic institution existing in the real world, grants marital benefits to same-sex employees and students.
It is possible--though some fundamentalist and evangelical Christian groups find it hard to imagine--to hold a free religious belief for yourself while not insisting on imposing it on others through public policy.
The answer is to protect one man's personal free religion while, at the same time, protecting another man's personal freedom not to live by that religion. As Madison and Jefferson knew and intended, you do that by smartly compartmentalizing religion and the Constitution, or the state.
But in the meantime, the sky looms over the grandstand. And is falling thereon, some grandstanders will always shout.
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John Brummett's column appears regularly in the Arkansas Democrat-Gazette. Email him at [email protected]. Read his blog at brummett.arkansasonline.com, or his @johnbrummett Twitter feed.
Editorial on 07/12/2015