Claiming a religious exemption from things like birth control and gay marriage is a favorite cause of people on that side of the Culture War, but to say “my sandbox, my rules” –which has roots in the white only private schools and clubs that sprung up in the wake of the end of forced segregation–really a plausible argument to protect religious freedom?
Kara Loewentheil thinks not. She is the Director of the Public Rights/Private Conscience Project and a Research Fellow at Columbia Law School, says that as argument for religious freedom it’s a dead end. On the other hand “sandbox theory” is a popular, and effective, tactic to slow down marriage equality in both religious institutions and in the private sector.
In a story that hasn’t yet been widely picked up in the national media, a Baptist Church in Louisiana has evicted an AA group from its meeting space for fear that because it allows AA to meet there, it could, in some speculative future litigation, be deemed a public accommodation and required to host gay and lesbian commitment ceremonies.
This is going to be catnip for advocates and scholars who make what I call the “sandbox” argument: the argument that we need to allow religious refusals or else houses of worship and religiously-affiliated non-profit organizations (or for-profit businesses for that matter) will take their toys and go home.
The classic example used to illustrate the sandbox effect is Catholic Charities, which stopped providing adoptions in Massachusetts after a law was passed requiring adoption agencies to serve gay and lesbian families. The lesson here is supposed to be that a religious exemption would have allowed Catholic Charities to continue operating and saved the children, in some general pathos-inducing way. This new AA story fits right into that neat little narrative.
The problem is that the story is basically false. Catholic Charities, for example, didn’t close because it was not willing to place children with gay and lesbian couples–in fact, it already had been placing children with gay and lesbian couples. The problem was that once Massachusetts started to consider a law requiring that it do so, the church hierarchy started paying attention, realized that Catholic Charities had already been doing it, and then closed the branch down rather than allow them to continue doing what they had already been doing anyway.