January 31, 2005
Martin E. Marty
James Madison, who had a thing or two to do with constitutional matters in the early republic, wanted a "line of separation" between "the rights of religion and the Civil authority." At a recent workshop where I elaborated on that theme, a colleague persuaded me that my views on this line are "messy." That's not a bad description for what I think the nation's Founders brought to the matter and what they left us with. We did not have, do not have, and will not have "absolute separation," nor will we ever clearly and permanently "solve" issues along that line. Fierce as one may be (and as I indeed am) about "non-establishment" of religion and other such issues, it is not realistic to think one can draw an "absolute" line. A person wanting to do so would start tomorrow by legally ending tax exemption for religious properties and institutions. Not a single member of Congress could get re-elected with that in her platform.
Sometimes cases reaching the U.S. Supreme Court achieve clear resolutions and definitions, but usually things are messy. That calls to mind the newest messy-lined case, detailed best in Burton Bollag's recent story "Choosing Their Flock" in the Chronicle of Higher Education (January 28, 2005). The article's subhead says that "conservative Christian groups have forced colleges to allow them to bar gay students and nonbelievers." But now major institutions are fighting back. It would be a good time to be a lawyer on either side, though this is the kind of battle for which the concept of "pro bono" was invented. Voluntary associations of conservative Christian legal experts are on the front line. Want to take them on? Be prepared for rough-and-ready argument. Prefer to side with the opposition? You must not have met the informed and motivated legal and activist agents of pro-gay groups.
Barring gays and non- or other-believers clearly violates institutional rules and, almost as clearly, the laws behind them. Those rules and laws prohibit discrimination on the grounds of race, religion, sex, disability, and other factors. Exclusion on the basis of sexual orientation is barred on hundreds of campuses, especially public ones. And since almost all private colleges also receive tax funds in one form or another, the same rules and laws apply there. If the world were not messy, the schools and the law would simply draw a bold, clear, and unwavering line between "the rights of religion" and "the Civil authority," and here see the civil side winning. Ah! But then come profound religious reactions: What happens to "free exercise" if "we" are not permitted campus locations, acknowledgments, and sanctions?
You haven't seen anything yet. Wait until the Muslim student causes get activated on this front. There are, after all, many "out" evangelical gays and many more closeted ones, and there is room for debate indeed, there is debate on this issue among Christians. But the Muslim rejection of homosexuality and homosexuals is absolute and vehement. Will the campus laws support them?
The Chronicle story tells of some efforts by thoughtful leaders, for instance at Ohio State University, where conversations on this matter occur even when there is no basis for agreement. They are trying to remain civil and humane across the messy line.
Do not envy the judges who have to decide this issue as it makes its way up, as it surely will, to the U.S. Supreme Court, which stands very little chance of getting a "civil" and "humane" response from publics, whichever way it rules.
Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.