Love the Sin: Sexual Regulation and the Limits of Religious Tolerance

4. The Free Exercise of Sex

4 The Free Exercise of Sex Rethinking sexual freedom in terms of practices rather than those of the overarching enlightenment narratives of liberation, is a major project. Is it really possible to practice freedom in the American context? In this chapter, we turn to a constitutionally protected freedom that specifically names practice—the free exercise of religion. We are bringing together homosexuality and religion not because we want to make hard and fast claims about what it is to be religious or to be gay, but because we want to refocus public attention on practices of freedom. At first glance, the connection that we draw between religious freedom and sexual freedom may seem strange, for at least two reasons: (1) religion is most often cited as the fundamental opponent to sexual freedom; and (2) there is not a lot of religious freedom (at least in practice) in the United States anyway. However , the freedom of religion is a potentially radical force in U.S. society. The First Amendment to the Constitution begins, “Congress shall make no law respecting 103 an establishment of religion or prohibiting the free exercise thereof.” Concerns about religion thus precede even the well-recognized freedoms of speech and of the press. There are two components that make up the religion clause: disestablishment and free exercise. As Justice Hugo Black wrote in Everson v. Board of Education (1947), disestablishment means “at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or remain away from church against his will or force him to profess a belief or disbelief in any religion.”1 Free exercise means that the state should not (at least not without a compelling interest) make it difficult or impossible for any person to practice his or her religion. In other words, the state should not force any person to practice any religion, nor should the state block a person from practicing any religion. There is much debate in legal circles over the proper relationship between disestablishment and free exercise, and even whether these two principles should be regarded as two separate clauses. We argue that the radical potential of religious freedom emerges precisely in maintaining their inseparability. In our view, there can be no real free exercise of religion without disestablishment— and vice versa. One of the reasons that there is so little religious freedom in the United States is that we do not have genuine disestablishment; as we have seen, Christianity is the de facto established state religion. The United States practices a form of religious toleration that is not all that different from the toleration offered by the state churches of Europe, even though this limited and limiting religious toleration is what American religious freedom was supposed to overcome. Nonetheless, Christianity (specifically Protestantism) has been the religion of the land, enacted through American history in everything from prayer in public schools to the religious identifications of the president. (Controversies in 2000 over loosening these boundaries to allow for a Catholic Chaplain of the House THE FREE EXERCISE OF SEX 104 of Representatives or a Jewish vice presidential candidate show the ways in which this de facto establishment remains in force.)2 In the realm of sex, we have a de facto established sexuality, heterosexuality . This is why there is a “coming out” day only for homosexuals. (Every day, it seems, is heterosexual day. Even when antigay groups stage a “coming out” event, it’s a “coming out of homosexuality.”) In the United States, heterosexuality is also a de jure established sexuality. Heterosexuality is privileged in federal and state laws, from immigration to taxation to healthcare. Disestablishing heterosexuality and its privileges would represent a major social transformation, a transformation that is necessary if we are to move beyond sexual toleration to sexual freedom. As we argued in chapter 1, to the extent that state-sanctioned homophobia is, at its base, religiously motivated homophobia, the disestablishment of sexuality is not just akin to the disestablishment of religion; it cannot happen without it. But disestablishment, although a necessary condition for sexual and religious freedom, is not in and of itself sufficient. Alongside disestablishment, there must be free exercise; without it there can be neither sexual nor religious freedom . Free exercise is important because...