Is Same-Sex Marriage a Religious Freedom?

October 28, 2022

By Nathan Berkeley

An op-ed recently appeared in the The New York Times titled, “Same-Sex Marriage Is a Religious Freedom.” In it, the author advances an argument that twists freedom of religion into a license for culturally ascendant Americans to demand affirmation for their moral views and ways of life. 

The author, Steven Paulikas, is an Episcopal priest writing about his own “wedding” and the “unthinkably difficult promises” he was making on that occasion. Nothing prevented him and his partner from entering into this ceremony or seeking from their community of faith and others the blessing of their union as a marriage. Many religious Americans, however, understand marriage to be the union of husband and wife, and therefore a wedding to be the event that initiates and publicly declares that union. Such people would not be able to celebrate Paulikas’s relationship, not because of his or his partner’s “sexual orientation,” but rather because of their convictions about the nature of marriage and its connection to sexuality morality. Critical as debates about the definition of marriage are, Paulikas’s understanding of religious freedom is wrong not because he is wrong about marriage, but because he is wrong about turning religious freedom into a coercive means to punish and correct dissenters. 

Paulikas offers a conception of America’s First Freedom that is contrary to the Founders’ vision and unsustainable in our pluralistic society. He characterizes entirely legitimate religious freedom protections as relegating certain groups to “second-class status.” He writes:

Our wedding was an exercise of the freedom not only to be married under equal protection of the law but also to practice our religion. And yet a powerful political, legal and social movement is poised to prevail in its mission to relegate the marriages of L.G.B.T.Q. people to second-class status in the name of ‘religious freedom.’

The strategy of Alliance Defending Freedom (ADF) reflects an additional error, according to Paulikas, of extending religious freedom to faith-based businesses. He laments that ADF defends “the supposed religious rights of private businesses rather than churches or even individuals,” saying:

The Supreme Court endorsed religious freedoms for privately held for-profit corporations in the 2014 Burwell v. Hobby Lobby decision. Four years later, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court sided with a baker who refused service to a same-sex couple, albeit on narrow procedural grounds that the court will soon revisit.

He also references a current case dealing with similar issues, 303 Creative v. Elenis, stating, “To be honest, my husband and I wouldn’t have hired a web designer or a baker who didn’t want to celebrate with us. But that’s not the point. If the law allows same-sex couples to be treated differently from other couples, then our religious freedom to be married is not complete” [emphasis added]. Here the author’s distorted view of religious freedom is laid bare. He fails to recognize that for some businesses, the provision of services for a same-sex “wedding” or in support of a same-sex “marriage” would make them complicit in a rite or relationship their religion forbids – even while those same businesses serve all customers or clients in a range of other circumstances. This was indisputably the case in Masterpiece Cakeshop and Arlene’s Flowers, to give just two examples. It is Paulikas who is turning religious freedom into a “sword,” and the very people who seek to rely on it as a shield for protection he charges with “discrimination.”  

Paulikas sees an infringement of his and his partner’s religious freedom wherever they encounter an individual or institution in society unable, in good conscience, to endorse their relationship and call it a marriage. Religious freedom is not now – and never has been – constituted as a means of demanding, from every individual and institution in society, full affirmation for one’s way of life. In fact, it forbids just that demand. Instead, a well-ordered system of religious freedom urges us to respect the equal dignity of everyone amid our differences without imposing some superficial or illusory religious or moral relativism across society. Moreover, it secures everyone’s right to appeal to our civic neighbors vigorously but peaceably, based on our deepest convictions, without resorting to coercion to settle the disagreements that inevitably arise. 

Paulikas flips religious freedom on its head. 

Nathan A. Berkeley is RFI Communications Director and Research Coordinator.