Gerard V. Bradley

Gerard V. Bradley writes; “For Christian Judges, Is Compromising Religious Beliefs ‘The Price of Citizenship’?” at Witherspoon Institute’s blog. Withspoon Institute is an ultra-conservative Catholic organization run by an Opus Dei numerary. Bradley is a professor of law at the University of Notre Dame Law School and a senior fellow of the Witherspoon Institute. He writes:

The wedding cases so far decided have mostly adopted the view that legal protection of conscientious religious objection is tantamount to giving an imprimatur to a “demeaning” opinion of gay men and lesbians, as if there is no difference between laws limiting marriage to opposite-sex couples and laws that make allowance for “decent and honorable” personal unbelief in same-sex marriage.

That is a compound argument premised on the notion that there can be an acceptable “conscientious religious objection” to laws governing discrimination in public accommodations. An exemption of that nature would make the law utterly meaningless and unenforceable. The intent of such laws is to ensure that everyone is served equally or, to put in another way, to ensure that no one is denied service. Mr. Bradley is free to believe whatever he wants. Whether or not those beliefs are “decent and honorable” is rather subjective. As a matter of public policy—indeed as settled law—those beliefs do not affect obligations to comply with applicable nondiscrimination laws.

But this is surely mistaken. For one thing, it does not follow from Obergefell. Besides, the objectors in these cases object only to serving same-sex weddings, not to serving gay or lesbian customers as a group. Consider the case of Baronelle Stutzman, a florist who faithfully served a gay customer for nine years, demurring only when he asked her to work on his upcoming wedding. The decided cases fudge this crucial distinction by saying that same-sex marriage is identified with gays and lesbians, so much so that opposition to it is opposition to them. But this is gratuitously to deny the distinction between acts and person, a distinction upon which Christian morality—and any sound moral system—depends.

The argument that he is trying to make now is that discriminating against a gay couple getting married is not the same thing as discriminating against gays. To which I say “bullshit.” For example: “I serve Jews all the time but if they want to marry a Christian well, then I have a problem.” Who could claim that is not anti-Semitic? Or: “I serve white people and black people all the time but I have a problem with a black man marrying a white woman.” Is that not racist? Of course it is. It is not a crucial distinction and it is not a “fudge.” It is just common sense. I am sure that ADF or Liberty Counsel have trotted out Bradley’s argument and it has failed. This so-called distinction between person and behavior has similarities to the origins of discriminating against gay people insisting that homosexuality was not a sexual orientation but a behavior which is an effort to conform the realities of society to scripture.

Sorry Mr. Bradley but if you have a problem with gay couples getting married then you have a problem with gays. The very reason that the Church opposed same-sex marriage was disapproval of gay people who are “objectively disordered.” I have read countless arguments opposing same-sex marriage from the likes of Robert P. George and Ryan T. Anderson. None of them ever made any sense. None of them ever answered the question of how same-sex marriage adversely affected anyone else. The unstated underlying basis for their opposition was that the Church does not approve of gay people. So just how “decent and honorable” are those anti-gay beliefs when they do adversely affect the lives of others?

We do not typically judge any case of religious freedom to
be an endorsement of the soundness of the relevant religious convictions
themselves. The bases of these religious freedom cases have rather been
that these positions are the sincere belief of someone or some
community, and that it is a good thing for our polity to protect
religion and to promote conscientious decision-making so that persons
can direct their own lives and live them with moral integrity.

That is true and that is precisely why there are no religious exemptions to valid laws. Otherwise we have to test the soundness of the relevant religious conviction in order to know how to apply the law. It would present an impossible burden.

I may come back to this when I have more time (Bradley is quite verbose). As I said, this is a quick take. I should note that Bradley co-authored (along with Fr. John Harvey) a parent’s guide to “Same-Sex Attraction.” Harvey is a director of Courage which treats gay men like alcoholics with a 12-step program. Yeah, Bradley is a piece of work.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.