FMA

Jim at Outside the Beltway agrees that FMA may be too broad, but he's kinder to the Southern Baptists than I am:

And, given the proclivity of courts to go off on weird tangents interpreting laws, I think Brett too quickly dismisses the censoring of fundamentalist churches. It would not be all that big a stretch to have churches denied tax exempt status or other benefits if they discriminated against homosexuals in their desire to marry, for example.

Now I agree that judges can be creative in surprising ways, but I find it really hard to believe that anyone would seriously propose (in the near future) that gays and lesbians have a legally enforceable right to be married in a particular church or a particular denomination. This claim strikes me as being as fanciful as the claim that women have a legally enforceable right to be Catholic priests. Jim might be thinking of the pressure on Bob Jones University and Goldsboro Christian Schools because of the former's ban on interracial dating and the latter's practice of admitting only whites -- both based on their interpretations of the Bible -- pressure that eventually led to the University losing its tax-exempt status (see the Supreme Court ruling in Bob Jones University v. United States, here.) On the surface the cases seem to be similar; both have to do with institutions claiming a religious reason for a discriminatory approach to some issue of public note. But here's the key part of the ruling in Bob Jones, with Chief Justice Burger writing for the nearly unanimous Court (with Rehnquist as the lone dissenter; footnotes omitted, emphasis added):

We are bound to approach these questions with full awareness that determinations of public benefit and public policy are sensitive matters with serious implications for the institutions affected; a declaration that a given institution is not "charitable" should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy. But there can no longer be any doubt that racial discrimination in education violates deeply and widely accepted views of elementary justice. Prior to 1954, public education in many places still was conducted under the pall of Plessy v. Ferguson, 163 U.S. 537 (1896); racial segregation in primary and secondary education prevailed in many parts of the country [. . .] This Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), signalled an end to that era. Over the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination in public education.

An unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court's view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.

[. . .]

Congress, in Titles IV and VI of the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241, 42 U.S.C. 2000c, 2000c-6, 2000d, clearly expressed its agreement that racial discrimination in education violates a fundamental public policy. Other sections of that Act, and numerous enactments since then, testify to the public policy against racial discrimination. [. . .]

The Executive Branch has consistently placed its support behind eradication of racial discrimination. Several years before this Court's decision in Brown v. Board of Education, supra, President Truman issued Executive Orders prohibiting racial discrimination in federal employment decisions, Exec. Order No. 9980, 3 CFR 720 (1943-1948 Comp.), and in classifications for the Selective Service, Exec. Order No. 9988, 3 CFR 726, 729 (1943-1948 Comp.). In 1957, President Eisenhower employed military forces to ensure compliance with federal standards in school desegregation programs. Exec. Order No. 10730, 3 CFR 389 (1954-1958 Comp.). And in 1962, President Kennedy announced:

"[T]he granting of Federal assistance for . . . housing and related facilities from which Americans are excluded because of their race, color, creed, or national origin is unfair, unjust, and inconsistent with the public policy of [461 U.S. 574, 595] the United States as manifested in its Constitution and laws." Exec. Order No. 11063, 3 CFR 652 (1959-1963 Comp.).

These are but a few of numerous Executive Orders over the past three decades demonstrating the commitment of the Executive Branch to the fundamental policy of eliminating racial discrimination. [. . .]

Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education. Given the stress and anguish of the history of efforts to escape from the shackles of the "separate but equal" doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising "beneficial and stabilizing influences in community life," Walz v. Tax Comm'n, 397 U.S. 664, 673 (1970), or should be encouraged by having all taxpayers share in their support by way of special tax status.

What we had in Bob Jones was the Court taking note of an overwhelming consensus in the national government that eliminating racial discrimination in education was an important enough public policy goal to justify a burden on -- or a removal of a benefit from -- these two institutions. So if at some point it comes to pass that there is a similar consensus around the overwhelming need to eliminate discrimination between straight folks and gays and lesbians for the purpose of marriage, then perhaps the same kind of reasoning will have force. As it is, Congress has gone the other way with DOMA (no pun intended), and the President has blithely sidestepped the issue.

I go back to my claim that the Southern Baptists are trying to scare their followers. There is definitely a seige mentality deeply engrained in fundamentalism -- those "others" are out to get us and our children, and God is on our side, or, we have to show God that we're on His side, so we'll have to fight back the hordes. And many fundamentalists have already put the Federal courts into the category of the "hordes" (which is one reason why I think that Jay Sekulow's radio propogandizing is likely to be powerful among many groups as a mobilizing tool). But that doesn't mean that the courts really work like that. Again, the rise of feminism hasn't caused denominations to lose their tax-exempt status for not ordaining women, and it certainly hasn't led anyone to be "censored" (as far as I know) for arguing that women shouldn't be priests or ministers in a certain denomination.

I can't resist linking to a story from the St. Petersburg Times about Mel White and Gary Nixon's decision to move across the street from Jerry Falwell's Liberty Baptist Church and to attend church there. It doesn't really fit with this story, except to point to the fact that what is probably happening is that fundamentalist groups are feeling threatened because other people are refusing to hide their sexuality, and that the hysterical claims by the Southern Baptists probably need to be read in the context of that psychological dynamic.