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I'm never going to get any work done if I keep reading the prolific Volokh

I love the Volokh conspiracy, because even when I disagree with it, it's a funny read. Unfortunately, the article to which I linked shows a pretty common danger on blogs--arguing your opponent's point of view and then describing why the argument is so weak, having made a hash of their argument.

Volokh compares religious intolerance to intolerance of homosexuality, but in doing so I'm not sure he takes his opponent's arguments seriously. I was particularly thinking of his point regarding conduct and belief:

2. Conduct v. belief. Another reaction is that homosexuality is conduct, and therefore the proper subject of man's law, while belief is not properly governed by man's law. But Hinduism involves more than just disbelief in the Christian God, and belief in other gods; it also involves the conduct of creating graven images, and breaking the Sabbath. What's more, as I understand it, from a Protestant perspective, belief in God is at least as theologically important as conduct, and perhaps more so. The Ten Commandments, as we see, command belief as well as conduct. If the justification for outlawing homosexuality, or firing homosexual teachers, is simply that it violates God's law, then how does importing the conduct/belief distinction fit with such a justification?

But of course, this is a pretty limited statement of the difference between conduct and belief. First of all, most conservative Christians who make this distinction aren't outlawing homosexuality, but acts which practicing homosexuals would indulge in, and most, if not all, of those proponents of this belief would make such actions illegal between consenting adults of different sexes as well. Most of them would make the quite logical distinction between a practicing homosexual and someone who has such temptations but does not act upon them. ("Sinning in one's heart," however much one disliked Jimmy Carter, wasn't going to be made illegal by the religious right.)

His article doesn't explicitly state, but seems to rest upon the presumption that the branch of conservative Christians of whom he speaks (of which I am not one, by the way, having no big issue with homosexuality one way or the other, and not being particularly Christian) despise the idea of homosexuality but are perfectly willing to tolerate same-sex sodomy wheresoever they may find it. They're not--they have definite views on the importance and morality of certain sexual actions.

The distinction blurs simply because there are not that many heterosexuals who, in the normal course of their daily lives, announce loudly and in public that they engage in heterosexual sodomy, and for the most part, there's no way to prosecute a heterosexual who enjoys such acts but keeps the relationship private. On the other hand, two men who proudly declare themselves homosexual are not necessarily, but certainly suggestively, indicating that they engage in such acts. [1] But is anyone suggesting that the Jerry Falwells of this world wouldn't support prosecuting a man and a woman who explicitly stated they'd committed similar sexual actions? I can't imagine any of my old Christian Coalition friends from Washington objecting to a homosexual being allowed to be a teacher, but then simultaneously welcoming a female heterosexual teacher who admitted that she enjoyed any of the acts covered by Georgia's old sodomy statute.

In the end, sex isn't religion, and religion isn't sex, and I don't find it contentious that one can believe an act should be illegal because, from one's religious perspective, it's considered to be immoral.[2] I agree with him that many people are uncomfortable with the idea of discriminating against homosexuals partially because it goes against our ideas of religious toleration. But I'm also very wary about the simplistic charicatures of the religious right that tend to pop up in the blogosphere.

[1] I would think that most of Volokh's intended groups would have little problem with two men who lived together and never engaged in any sexual activity, at least legally, but the case is rare enough as to be difficult to tell.

[2] Volokh also slights the argument about toleration when he states that:

But I would hope that many people's attachment to religious freedom is deeper than just "Well, the Constitution requires it, so we have to reluctantly adhere to it." Religious freedom is often described as a broader ethical principle -- a principle that people should be tolerant of those of other religious groups, and should treat them equally (at least in allotting government jobs) even though they disagree with that religion.

Except, of course, that for many evangelicals this is explicitly not the case, whatever his 'hopes' for their attachments. Indeed, if you're an evangelical you pretty much by definition consider conversion a religious duty, and may not have a problem with that being enforced by law, per se. The principle behind the Establishment Clause can equally be seen as broadly pragmatic, instead of ethical--by not allowing the Federal government to establish a religion, every religious person is assured that their belief won't be outlawed, and that they may continue to evangelize. Volokh argument basically boils down to, "If you don't happen to be a strict evangelical, then the strict evangelical argument won't make sense to you." Which is true as far as it goes.

Update: There's been a lot of commentary on the original posting, including this at the Legal Theory Blog. Professor Solum quibbles (a bit more politely) with Volokh's view in similar ways to the above. I'll link to other comments as I find them.

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