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RELIGIOUS FREEDOM VERSUS SEXUAL EXPRESSION: A GUIDE

Published online by Cambridge University Press:  15 September 2015

Helen M. Alvaré
Helen M. Alvaré*
Affiliation:
Professor of Law, George Mason University School of Law
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Abstract

Claimed rights to sexual expression unlinked to the creation of children are among the strongest challenges facing the free exercise of religion in the United States today. Such rights gained importance by means of a series of Supreme Court opinions associating consensual sexual expression unlinked to children with human dignity and even personal identity. These were accompanied by legal and cultural movements, led by more privileged Americans, diminishing children's rights in favor of adults', in the context of sex, marriage, and parenting. Laws and regulations protecting and promoting sexual expression detached from children are powerfully affecting religious institutions that operate health care, educational, and social services available to all Americans; the Catholic Church is a particularly prominent supplier of all of these services. Respecting the Catholic Church, it is possible but quite difficult to maintain respect for its free exercise of religion in the current environment, potentially by highlighting its measurable contributions to the common good. It might also be useful to show the close link between Catholic teachings on sex and marriage and the entire Catholic cosmology, such that coercing Catholics to behave otherwise is tantamount to coercing them to practice a different faith.

Keywords

free exercisereligionsexual expressionnondiscrimination
Type
SYMPOSIUM: CHRISTIANITY AND HUMAN RIGHTS
Information
Journal of Law and Religion , Volume 30 , Issue 3 , October 2015 , pp. 475 - 495
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2015 

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References

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3 Griswold, 381 U.S. at 484 (majority opinion).

4 Id. at 486.

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7 E.g., Potter v. Murray City, 760 F.2d 1065, 1066 (10th Cir. 1985); Vacco v. Quill, 521 U.S. 793, 797 (1997); Washington v. Glucksberg, 521 U.S. 702, 706 (1997).

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15 410 U.S. at 153.

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18 Id. (emphasis added).

19 Id. (emphasis added).

20 Id. at 851 (emphasis added).

21 Id. at 852.

22 Id. at 852–53.

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30 1 U.S.C. § 7 (2012).

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33 Id. at 2693.

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35 561 U.S. 661 (2010).

36 Id. at 689.

37 Id.

38 388 U.S. 1 (1967).

39 Brief for the Petitioners at 3, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (No. 13–354).

40 Id. at 15.

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72 See, e.g., Arkansas Code Annotated, 1 § 20-13-1403 (West 2009); Connecticut General Statutes § 19a-112e (2009).

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74 Letter from Michelle Rouillard, Director, California Department of Managed Health Care, to Mark Morgan, California President, Anthem Blue Cross (Aug. 22, 2014) (on file with author).

75 See, e.g., George Rede, Sweet Cakes by Melissa Discriminated against Lesbian Couple, Oregon Hearings Officer Rules, Oregonian, Feb. 2, 2015, available at http://www.oregonlive.com/business/index.ssf/2015/02/sweet_cakes_by_melissa_discrim.html (reporting on baker fined for refusing to provide wedding cake for two lesbian women); Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied 134 S. Ct. 1787 (2014) (holding that photographer's refusal to attend and photograph same-sex wedding ceremony was unlawful discrimination based on sexual orientation).

76 Mary Ann Glendon, Rights Talk (1991).

77 Synod of Bishops, Instrumentum Laboris 23 (2014).

78 See Genesis 19:5–8; Leviticus 18:22–23; Leviticus 20:13; 1 Timothy. 1:9–10; Romans 1:26–27.

79 Congregation for the Doctrine of the Faith, Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons ¶ 6 (1986).

80 Congregation for the Doctrine of the Faith, On the Collaboration of Men and Women, in the Church and in the World 5 (2004) (citing John Paul II, Apostolic Letter Mulieris Dignitatem [On the Dignity of Women] ¶6 (August 15, 1988)).

81 John Paul II, Mulieris Dignitatem [On the Dignity of Women] ¶ 7 (1988).

82 John Paul II, Familiaris Consortio [On the Role of the Christian Family in the Modern World] ¶ 19 (1981).

83 Id. at ¶ 21.

84 Id. at ¶ 19. (“But in the Lord Christ God takes up this human need … leading it to perfection through the sacrament of matrimony: the Holy Spirit who is poured out in the sacramental celebration offers Christian couples the gift of a new communion of love that is the living and real image of that unique unity which makes of the Church the indivisible Mystical Body of the Lord Jesus.”).

85 Catechism, supra note 47, at ¶ 2335.

86 Familiaris Consortio, supra note 82, at ¶ 28.

87 Pope Benedict XVI, Deus Caritas Est [God is Love] ¶ 12 (2005).

88 Id. at ¶ 13.

89 Id.

90 John Paul II, Gratissimam Sane [Letter to Families] ¶ 14 (1994).

91 Id. at ¶ 3.

92 Karol Wojtyla, Love and Responsibility 97 (1960).

93 Catechism, supra note 47, at ¶ 1604.

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95 Catechism, supra note 47 at ¶¶ 1611–12.

96 On the Collaboration of Men and Women, supra note 80, at ¶ 8.

97 Id.

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99 John Paul II, General Audience of Oct. 20, 1982, available at http://www.ewtn.com/library/papaldoc/jp2tb98.htm (“Marriage was also a part of this integral heritage—as can be deduced from the Letter to the Ephesians 5:21–33—marriage, that is, as a primordial sacrament instituted from the beginning and linked with the sacrament of creation in its globality. The sacramentality of marriage is not merely a model and figure of the sacrament of the Church (of Christ and of the Church). It also constitutes an essential part of the new heritage, that of the sacrament of redemption, with which the Church is endowed in Christ.”).

100 Id.

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102 Chai Feldblum, Moral Conflict and Conflicting Liberties, in Same-sex Marriage and Religious Liberty: Emerging Conflicts 26 (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson, eds., 2008).

103 There are more than a few books accessed largely by Catholics, treating such subjects, see, e.g., Erika Bachiochi, Women, Sex and the Church (2011); Helen M. Alvaré, Breaking Through: Catholic Women Speak for Themselves (2012), but very little discussion of the religious centrality of marriage in widely-publicly available sources. But cf. Michael Paulson, As Vatican Revisits Divorce, Many Catholics Long for Acceptance, New York Times, Jan. 24, 2015, available at http://www.nytimes.com/2015/01/25/us/as-vatican-revisits-divorce-many-catholics-long-for-acceptance.html (“Ms. Alvaré, who is a former spokeswoman for the American bishops, said the indissolubility of marriage is a Catholic essential, ‘a key to the entire Roman Catholic cosmology—our understanding of the world, God, our relationship with him and our relationship to one another.’”).

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113 Melinda Wenner, Birth Control Pills Affect Women's Taste in Men, Scientific American (Nov. 26, 2008), http://www.scientificamerican.com/article/birth-control-pills-affect-womens-taste/.

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117 Thomas B. Edsall, What Makes People Poor?, New York Times (Sept. 2, 2014), http://www.nytimes.com/2014/09/03/opinion/what-makes-people-poor.html?_r=0.