Notwithstanding the paranoid fantasies of some religious conservatives, no church or clergy in the United States will be compelled to perform same-sex marriages, any more than they are compelled to perform remarriages or interreligious marriages. Neither will religious teachings about sexuality and marriage be penalized; Kennedy’s opinion reaffirms this obvious point. Kennedy moreover steps away from his previous tendency to say that opposition to homosexuality is nothing but an irrational animus; that view would tend to get in the way of thinking about the just freedom of members of religious groups that oppose same-sex marriage. But there remain live questions about conscientious exemptions and the religious liberty of associations, institutions, and dissenters. The public equal freedom to marry is fully compatible with the private equal freedom of association and of religious belief and practice, and both are worthy of robust defense. I think that the torrent of abuse against the Indiana pizzeria that (briefly) said it wouldn’t cater a same-sex wedding a few months ago was an aberration, not a sign of a slippery slope. I think that the Solicitor General’s concession that private universities denying married-student housing to same-sex married couples might find their tax-exempt status at risk was a moment of absurd stupidity, not a moment when the curtain slipped and the truth was exposed. I think the federal and state RFRAs do, should, and will continue to provide considerable protection for those who don’t want to be involved in same-sex weddings and for those whose beliefs about marriage are incompatible with same-sex marriage. But those are predictions, not analytical truths, and it’s important to stand up for a pluralistic civil society under a regime of equality before the law.
On symbols that celebrate histories of injustice, I think that there are two relevant distinctions: public-private and use-mention. The public use of the Confederate battle flag, as when it is incorporated into a state flag or flown in honor over public buildings is an illegitimate state endorsement of the history of slavery and postbellum terror and subjugation. It should end, completely. But each of the other three categories– public mention, private use, and private mention– is different. The same flag in a museum, or in pictures in a school’s history textbook, or generally in honest accounts of the past, means something very different from what it means when being flown in honor. The Confederate past should not be shoved down a memory hole and obliterated; it should be remembered and confronted. Doing so allows, indeed may require, to mention the symbol– depicting it in the visual equivalent of quotation marks.
Both private use and private mention are, and should be, protected free speech. Private mention isn’t wrongful at all, and the idea that historical strategy Civil War board games have to be purged of the flag are silly. (Swastikas and hammer-and-sickle symbols are likewise reasonable and appropriate, in games depicting the appropriate wars.) I suspect that the rush to wipe out private-sector mentions is the result of panicked decisionmaking by mid-level PR and marketing managers who’ve misunderstood the push to have Walmart stop supporting the private use of the flag by selling acres of flags, flag t-shirts, flag belt buckles, flag truck decals, and so on. The panic will– and should– pass.
—Jacob Levy. I endorse his message and reasoning.