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Blog Series on SSM and Religious Liberty:

Professor John Culhane is doing a series of posts this week on the nature, extent, and potential resolution of conflicts between religious liberty and the legal recognition of same-sex marriage. The first post, a useful and interesting taxonomy of the issues, is up this morning. I recommend it to those who follow the subject.

Related Posts (on one page):

  1. "No Gay Couples Allowed":
  2. Blog Series on SSM and Religious Liberty:
Anonymous Cow:

Probably not. Dale Carpenter hasn't found a single reported case testing the religious freedoms of objectors against the rights of same-sex couples to marry or "civilly unite."


uh. I'm not a lawyer, but as a NY resident back in the day, I was able to come up with this off the top of my head.



so either you're being obtuse, or somewhat dishonest, especially when you read the quotes of the plaintiffs.

DC: This is a ten-year-old case very commonly cited by SSM opponents as an example of the damage SSM could do to religious freedom. But whatever the lawsuit suggests about anti-discrimination law in general, it says nothing about SSM. When the Yesiva litigation was filed in 1998 no same-sex couple *anywhere in the world* could legally marry, civil unions were not recognized anywhere in the U.S., and only very limited recognition was available in a few local jurisdictions. So the same-sex couple in the Yeshiva case was not married, could not be married under state law, and still could not be married today in New York. Their antidiscrimination claims did not rest on the existence of a marriage, civil union, domestic partnership or any official state recognition. Your complaint is with laws that protect gays from discrimination in housing, jobs, public services, and so on -- not with gay marriage as such.

Alternatively, your complaint is with SSM, but for reasons unrelated to any real impact on religious freedom. The Yeshiva case is just one example of how religious-freedom concerns are often used as a makeweight argument by some who oppose SSM on other grounds.
8.3.2009 10:04am
martinned (mail) (www):
Oh God... this can't possibly be a good idea...
8.3.2009 10:25am
CJColucci:
So how did that 10+ year-old case come out?
8.3.2009 10:53am
Mithras Invicti (mail) (www):
Yes, how did that case that had nothing to doing with same-sex partners marrying or "civilly uniting" come out? In the end, the highest court in New York decided that the policy did not discriminate on the basis of marital status but did state a claim for disparate treatment based on sexual orientation (which is prohibited New York city and state law).
8.3.2009 11:14am
LTEC (mail) (www):
It becomes more and more clear that SSM is not about allowing stuff, and not about the State recognizing same sex marriage, but mostly about forcing everybody to treat a certain protected class of people the way they would like to be treated. And they don't give a damn about any other class, such as friends living together, for example.
8.3.2009 11:26am
Chimaxx (mail):
Why is this issue ever only discussed in the one direction--states the permit same-sex marriage and religious objectors to the practice?

What should happen in states the prohibit same-sex marriage when religions sue to have the marriages they have performed recognized in law?

Yes, the current case is in the UK, but we have Quakers here, too, and their religious freedom is being trampled just as much as in the reverse case.
8.3.2009 11:43am
martinned (mail) (www):
@Chimaxx: Thanks for the link. That's an interesting (legal) question.
8.3.2009 11:52am
troll_dc2 (mail):

It becomes more and more clear that SSM is not about allowing stuff, and not about the State recognizing same sex marriage, but mostly about forcing everybody to treat a certain protected class of people the way they would like to be treated. And they don't give a damn about any other class, such as friends living together, for example.



1. What is the basis for saying that your vision of SSM is becoming "more and more clear"? I am interested in your evidence.

2. You say that SSM is about "forcing everybody to treat a certain protected class of people the way they would like to be treated." Assume you are right. How does that square with your assertion that SSM "is not about allowing stuff, and not about the State recognizing same sex marriage"? If SSM is not about having the state recognize same-sex marriage, what is it about? Your "not allowing" assertion is simply incoherent.

3. You say that SSM adherents "don't give a damn about any other class, such as friends living together." But why should we? Opposite-sex friends living together can get married if they want. Why should they need our support?

Do I need to remind you that the REAL threat to traditional marriage comes from providing marriage-like benefits to opposite-sex couples who choose not to get married?
8.3.2009 12:33pm
Putting Two and Two...:

And they don't give a damn about any other class, such as friends living together, for example.


I'll do troll_dc2 one better. Tell your opposite-sex friends to get married and I'll send them one of my surplus toaster-ovens (still in its original packaging).
8.3.2009 12:54pm
SeaDrive:
I'm sure that everyone expects churches to be able control what goes on in their buildings and in their name. The real issue is whether repressive forces in the society will be able to deny in the particular what they are forced to accept in the general. For example, is a religion-sponsored hospital going to be able to deny family privileges (e.g. visiting, information-sharing, responsibility-sharing with respect to children) to same sex couples.

There may be squabbling about small businesses like florists and photographers, but certainly here in Connecticut there are plenty who go out of their way to welcome SSM business. The rubber hits the road with large organizations like hospitals and schools.
8.3.2009 1:25pm
Danny (mail):
Exactly, there is no legal conflict between SSM as such and religious liberty, it's a red herring invented by our enemies. The debate is about anti-discrimination laws that exist independently of marriage law.
8.3.2009 1:46pm
troll_dc2 (mail):
SeaDrive, I suppose that a religion-sponsored school that picks its students can deny admission to students whose parents are a same-sex couple, but a religion-sponsored hospital that is open to the public raises a different issue when it admits a gay patient and then denies family privileges to his/her partner.

Family privileges, which are a big issue in parts of the country, are a major practical reason why same-sex couples want marital status. I assume that Connecticut's marriage law does not give hospitals an exemption.

I can only wonder why, especially in this recession, a commercial enterprise like a hospital would go out of its way to deprive itself of business.
8.3.2009 1:56pm
martinned (mail) (www):
The big issue in last Saturday's Amsterdam Gay Pride parade was whether religious schools, which are run independently from the government, but who are state funded and regulated (at least the quality of their education, etc.) should be allowed to fire a teacher for being openly gay. Normal discrimination in hiring/firing laws don't apply to this situation, and last Saturday a petition was offered to the education secretary, who was in the parade, arguing that maybe they should.
8.3.2009 2:07pm
Mike S.:
This is somewhat off point, but why should a hospital be able to determine who can visit a patient anyway? I can understand rules on the number of visitors, and maybe even restricting the number of different people permitted to visit, but why shouldn't the patient be able to select them on the basis of whatever criteria he or she wishes? I suppose there is the question of an unconscious patient, but then shouldn't the health care proxy be able to do so?
8.3.2009 3:28pm
LTEC (mail) (www):
troll_dc2 --

To respond to your questions:

1,2: If SSM were only about the State recognizing same sex marriage, there could not possibly be a conflict with religious liberty.

3: Your concern for non-protected groups is touching, and evidence for my point. Friends should just get married. And if they form a threesome? (And by the way, what about the right of bisexuals to have the State recognize what they need for true fulfillment?) There are many other non-protected groups.

Lastly, thanks for the reminder, but I expressed no concern, and I have no concern, with any "threat to traditional marriage". I do have a concern with the increasing threat to what I see as a right to discriminate -- in my personal life and my business -- according to my whims, be they religious or otherwise.
8.3.2009 3:59pm
Danny (mail):
Concerning the "right to discriminate", aren't there potentially other personal characteristics besides sexual orientation that aren't covered by discrimination laws, like native language or state of origin? Couldn't a restaurant owner or florist or hotel owner say "we don't serve native Spanish speakers here (of any nationality or ethnicity)" or "we don't serve Texans here"? And yet, native Spanish speakers and Texans would be eligible for civil marriage licenses.
8.3.2009 4:10pm
troll_dc2 (mail):
LTEC, perhaps we are talking past each other.

Should I read you, in light of your second post, as (1) being indifferent to what the government recognizes with respect to marriage and (2) wanting to be left alone so that you don't have to be asssociated with people who practice same-sex marriage or support it?

But, if so, why do you have such concern for people who would not be covered by the "traditional" concept of same-sex marriage? Why do you believe that friends who live together need help? What rights do you propose should be given to bisexuals? And to threesomes? And to other non-protected groups?

Even if you honestly believe that these non-protected groups should be entitled to some legal protection, why does the failure to provide that protection justify, as I think it does to you, the extension of legal protection to homosexuals? For that matter, under your regime, would not the failure to extend protection to every conceivable group invalidate the case for anyone, even heterosexuals, to get married?
8.3.2009 4:26pm
troll_dc2 (mail):

Concerning the "right to discriminate", aren't there potentially other personal characteristics besides sexual orientation that aren't covered by discrimination laws, like native language or state of origin? Couldn't a restaurant owner or florist or hotel owner say "we don't serve native Spanish speakers here (of any nationality or ethnicity)" or "we don't serve Texans here"? And yet, native Spanish speakers and Texans would be eligible for civil marriage licenses.



Actually, some jurisdictions forbid discrimination on the basis of language. It also has been a sore subject, still not resolved, as to whether Title VII's ban on national-origin discrimination can be read as forbidding discrimination on the basis of language usage.

One of the cheesesteak tourist traps here in Philadelphia has (or is it had?) a sign telling customers to speak English, but the discrimination case was dismissed on the ground that there was no evidence that anyone was actually denied service for not speaking English.
8.3.2009 5:02pm
Cornellian (mail):
Couples all over the country trample on my religious liberty every day by getting divorced, yet somehow I manage to soldier on.
8.3.2009 5:04pm
troll_dc2 (mail):
I do not undeerstand how the recognition of same-sex marriage affects religious liberty, so long as no one is forced to participate in a SSM ceremony or to approve it.

It is easy to write an exemption for churches and other religious institutions, but it is harder to write something that covers government officials, like court clerks, who can be forced to conduct a SSM ceremony and not have an entitlement to an exemption. Moreover, if a florist or photographer is opposed to SSM on religious grounds, requiring him to furnish services on pain of being found in violation of a state public-accommodations statute seems to be a violation of religous liberty. So I would give a blanket exemption to anyone, regardless of job, not to be a part of a SSM ceremony on religious grounds. Problem solved, yes?
8.3.2009 5:28pm
Danny (mail):
@ Troll

But even that "problem" is not related to SSM as a legal fact. The same "problem" would exist even if the SSM ceremony had no legal value. Those poor Christian florists could be sued by the nasty aggressive gays as long as there are anti-discrimination laws on the books, with or without SSM.

P.S. Why would this exemption have to be justified on religious grounds? You can't be atheist and want to deny people services?
8.3.2009 5:35pm
troll_dc2 (mail):
@ Danny:


But even that "problem" is not related to SSM as a legal fact. The same "problem" would exist even if the SSM ceremony had no legal value. Those poor Christian florists could be sued by the nasty aggressive gays as long as there are anti-discrimination laws on the books, with or without SSM.



Do I understand you to be suggesting that religious liberty could be be trampled if the anti-gay florists had to provide flowers to gay people for any reason? I addressed SSM because that is the topic here. But your comments suggests that religious liberty could be implicated in all sorts of other activity, such as employing a gay person, renting an apartment to a gay couple, serving a meal to a gay couple, or even selling a gun to a gay couple. Yes, there is a conflict between religious liberty and a state law forbidding sexual-orientation discrimination in employment, housing, and public accommodations. I would carve out an exemption for being forced to be involved in a SSM and otherwise require religious objectors to treat gay people like everyone else with the requisite talent and money.
8.3.2009 5:48pm
Danny (mail):

Do I understand you to be suggesting that religious liberty could be be trampled if the anti-gay florists had to provide flowers to gay people for any reason?


Exactly, I am saying that some religious people are offended by interacting with gay people in any way. What is the difference between selling flowers to a lesbian who is going to take them to her commitment ceremony or wedding, and selling them to a lesbian who is going to put them in her centerpiece? Why make an exemption for selling her flowers but not selling her a bus ticket or a gun? Maybe if I marry my boyfriend we don't give a damn about flowers, but we are going to provide an open bar for our old-fashioned parents for duration of the ceremony. So we will be needing some vodka. Do liquor stores then get an exemption? A hardline fundamentalist just might not want to deal with gay people at all on religious grounds, and I don't see how you are going to legally differentiate between services that are in some way involved with an SSM ceremony and those that aren't. Would there be a list of exempt services? Businesses?
8.3.2009 6:11pm
Danny (mail):
Last point: I am not necessarily closed to the idea of exemptions to anti-discrimination laws. The point is that it is unrelated to SSM. A conservative Jewish poster a while back said that some Jewish caterers could lose their religious licenses (and therefore customer base) if they participate in ceremonies that go against their religious law. Maybe the state could say "no anti-discrimination laws apply in cases where they would create undue hardship for a business" for example. Although that could open a huge can of worms if the members of different religions or groups start rampantly discriminating against each other with such an exemption...
8.3.2009 6:25pm
troll_dc2 (mail):
Would you require the court clerk to officiate at a SSM despite her religious objections?
8.3.2009 6:35pm
Danny (mail):
Well I think the gov't cannot disciminate because we have already bought their services by paying our taxes. I think if you are going to choose to be a representative of the state then you have to follow the law of the state "impartially". So the Christians leave their Bibles at the door, the Latinas have to put their folk wisdom aside. Because if not it's chaos - an evangelical Christian could refuse Mormon marriages or marriages of non-virgins. An old school Mormon could have a religious objection to interracial marriages. It's not imposing an undue hardship on the state to require it to apply its own laws.
8.3.2009 6:44pm
ArthurKirkland:
Should a bus driver be entitled to deny boarding to two men who seem to be a couple, or to refuse additional transportation to two women who start holding hands in the back of the bus?

Should a metal detector operator be entitled to refrain from handling the wallets and watches of openly gay citizens attempting to enter a municipal office building?

Could any group be a bigger threat to marriage than United States Senators registered as Republicans, or anyone who ever had anything to do with the C Street flophouse?

Should a pharmacy clerk be entitled to refrain from selling condoms to a man who announces his intent to use them in the "wrong" way?

Should a store clerk be entitled to refuse to wait on a family headed for a first communion, on the religious grounds the family is indoctrinating children into a group that facilitates and conceals sexual abuse of children?

I continue to maintain gays should start a church. The resulting movement toward equilibrium should solve most of the problems at the intersection of homosexuality and certain selective Biblical interpretations.
8.3.2009 6:50pm
troll_dc2 (mail):

I continue to maintain gays should start a church. The resulting movement toward equilibrium should solve most of the problems at the intersection of homosexuality and certain selective Biblical interpretations.



Are you referring to the prohibition against a man lying with another man? That can be taken care of without starting a church. All you have to do is to take the prohibition literally. It does not apply to same-sex sexual activity so long as both men are not lying down.
8.3.2009 7:00pm
Danny (mail):
@ Troll

LOL!!
8.3.2009 7:10pm
LTEC (mail) (www):
troll_dc2 --

I am against (most) anti-discrimination (by private actors) laws, including those that would protect currently unprotected groups. I also wouldn't mind if the State got out of the marriage racket, replacing it by a diverse set of possible financial, health-care, and child rearing contractual relationships. Certainly, many such relationships should currently be available to various unprotected groups, and to the extent that they are not I sympathize with those groups. But I have no special sympathy for the homosexual groups, and the all the nastiness I see from the SSM movement makes me sympathize even less.

(At this point I have to expect: "What nastiness can you possibly be referring to? I'm referring to the dishonest attempts to use courts instead of legislatures, to the constantly growing list of anti-discrimination demands (and the soon to occur affirmative action demands), to the personal attacks and threats to supporters of Proposition 8, to the constant refusal to seriously address the issue of unprotected groups in general -- the "friends can always fake marriage" attitude, and much more.)

(At this point I have to expect: "How dare you complain about affirmative action demands that are in your own imagination?" The people who say this try to sound as if they oppose such demands, whereas they are usually the people who most support them.)

(At this point I have to expect the non-denial denial: "Are you saying there's no nastiness on the other side?")
8.3.2009 8:08pm
scoob:
A liberty should not depend on religious affiliation.
8.3.2009 8:17pm
balto_ben (mail):
What if I am a florist who has no religious objection to the gay lifestyle, but I just find them repulsive personally, and would prefer not to deal with them? Why should I not be protected from dealing with gays, just because my beliefs don't have a religious veneer?
8.3.2009 8:19pm
scoob:

What if I am a florist who has no religious objection to the gay lifestyle, but I just find them repulsive personally, and would prefer not to deal with them? Why should I not be protected from dealing with gays, just because my beliefs don't have a religious veneer?


Exactly. No liberty should depend upon religious affiliation.
8.3.2009 8:21pm
Danny (mail):
LTEC, I don't see how your feelings about gays or your anxieties are relevant to the debate. People get equal rights not because we all "inspire sympathy" or we should all like each other. With all due respect, you can be David Duke or Pat Robertson himself and I don't care, but gays and lesbians should have their taxes cut to 1% if they are to continue to live as second-class "citizens" of a country that is indifferent to their well-being, and in many cases actively works against their interests. It's not about winning a popularity contest (except in the corrupt, irrational USA)
8.3.2009 8:29pm
scoob:
Out of curiosity, does anyone think that the question of whether sexual orientation is determined at birth, which seems unsettled by science, is relevant to the discussion at all?
8.3.2009 8:48pm
Danny (mail):
In principle it doesn't matter.. but in practice in terms of people's mentality it matters. Homosexuality is natural and has been observed in something like 1500 animal species and it presumably pre-dates humanity. Also gay people (and animals) share no common experience or variable other than sexual orientation. We don't know what evolutionary purpose is served by diversity in sexual orientation in different species. It doesn't really matter because we don't base our laws and ethics on nature. But it matters for public opinion, because there is a statistical correlation between homophobia and believing that sexual orientation doesn't exist (and probably denial of science in general, but that's another question).

US politics are emotion-based and deeply irrational. People never seem to get tired of talking past each other and rehashing the same incompatible worldviews over and over again instead of agreeing to put up with each other. You just cannot bridge the gap between theocracy and democracy or libertarianism, it's like oil and water. That is why every European country, Mexico, South America, etc. will have this question closed decades before the US.
8.3.2009 9:05pm
LTEC (mail) (www):
Danny --

The point is not that I am not sympathetic; the point is the reasons I gave why I am not sympathetic to the SSM movement.
8.3.2009 9:06pm
Chimaxx (mail):
LTEC:

We get it: You are unsympathetic because same-sex couples and their supporters have taken action in a variety of ways to try to win same-sex marriage rights rather than quietly waiting for the bounteously benevolent heterosexual majority to decide in its own good time to bestow them.

Makes perfect sense to me.
8.3.2009 9:52pm
Public_Defender (mail):
One religious liberty question that is often not asked is the rights of religious liberals to act according to their beliefs. For example, if a state employee can refuse to give a marriage license to a gay couple because his anti-same-sex-marriage religious beliefs require the refusal, why shouldn't a state employee be allowed to issue a marriage license if his pro-same-sex-marriage religious beliefs forbid him from discriminating against same sex couples?
8.3.2009 10:12pm
Perseus (mail):
US politics are emotion-based and deeply irrational. People never seem to get tired of talking past each other and rehashing the same incompatible worldviews over and over again instead of agreeing to put up with each other. You just cannot bridge the gap between theocracy and democracy or libertarianism, it's like oil and water.

The political choice of "put[ting] up with each other" is only obviously rational to a certain superficial brand of liberalism that one day will collapse from its own internal contradictions and weaknesses and be replaced by something else that will regard it as deeply irrational.
8.3.2009 10:54pm
Anatid:
After being systematically kicked in the shins by a heterosexual majority that is voting based on emotions rather than reason or education, aren't frustrated and exhausted SSM advocates allowed to overreact a little in response? My friends who went to protest outside a church whose pastor told his congregation to vote no on Prop 8 weren't thinking that their actions were only likely to further alienate those votes - they were just pissed off, upset that their hopes of legitimate marriage had been denied, and wanted to do something about it.

Also, please make sure not to confuse a vocal minority of SSM advocates, who can often be abrasive radicals, with the full body of SSM supporters. This is about as reasonable as comparing PETA to everyone who is concerned about animal rights and conservation (except that PETA is totally ineffective, as opposed to only somewhat ineffective).
8.4.2009 3:27am
John D (mail):
LTEC,

Why is the use of the courts dishonest? Is Brown dishonest? Is Loving dishonest? There have been a lot of SCOTUS decisions in the years since 1808. Are they all dishonest, or just the ones where plaintiffs prevailed?

Yes, there were some personal attacks on people who funded Prop 8. Why does this not fall into your opposition to anti-discrimination laws. People who fund political campaigns are not currently protected classes. Are you suggesting that despite your opposition to anti-discrimination laws, these people should have been protected by them?

I am going to refuse to take seriously whatever it is you're saying about "unprotected groups in general." If two people wish to get married for financial or political reasons, despite not caring for each other, it really is none of my business. You claim that supporters of same-sex marriage say, "the friends can always fake marriage." My view is that we don't question motives.

Certainly, opponents of same-sex marriage claim that same-sex couples who seek to marry do not have the same motivations as opposite-sex couples (not that either category comes with some factory default setting). People marry for a lot of reasons. I don't think anyone should be enquiring into why a couple married.

I've been waiting on this thread for someone to suggest a real religious liberty objection to same-sex marriage. It really does look like personal animus against gay people, and never any religious beliefs, lie at the base of objections to same-sex marriage. These expressions of personal animus are never a reason for restriction someone's rights.

Don't like same-sex marriage? Don't marry someone of your own sex.
8.4.2009 4:26am
egd:

Probably not. Dale Carpenter hasn't found a single reported case testing the religious freedoms of objectors against the rights of same-sex couples to marry or "civilly unite."


Au contraire
8.4.2009 8:46am
Chimaxx (mail):
egd:

As with the case referred to in the very first comment, this case has nothing to do with same-sex marriage or civil unions, since New Mexico didn't and doesn't offer either of these. This was a private "commitment ceremony" that had no standing in either the law or any religious institution. As Carpenter says in his response to the comment there: "whatever the lawsuit suggests about anti-discrimination law in general, it says nothing about SSM."
8.4.2009 10:03am
Chimaxx (mail):
egd:

John Culhane covers this case in the second paragraph of part II of his series. And it takes him in an interesting direction.
8.4.2009 10:26am
John D (mail):
Well, we can't really blame Anonymous Cow or egd for citing cases that have nothing to do with same-sex marriage. This is a consistent strategy of the opponents of same-sex marriage.

Culhane goes through a discussion with Robin Wilson (whom he does not identify, but is also a professor of law; Wilson is on the faculty of the Washington and Lee University School of Law).

When Wilson wrote an essay for the LA Times (posted on her web site), she cited, but did not name, the New Mexico photography case, and the Oak Grove Camp Meeting Association (the New Jersey pavilion). As has been commented here and elsewhere, neither New Mexico nor New Jersey have same-sex marriage and these cases were decided on the basis of anti-discrimination laws.

I think it justified, faced with these examples, for supporters of same-sex marriage to wonder if the opponents are not trying to merely prevent same-sex marriage, but to overturn all rights and protections accorded to gay people. Is there goal to draw a line in the sand at same-sex marriage (by specious argument) or are they trying to turn the legal status back to 1968?
8.4.2009 11:26am
troll_dc2 (mail):
John D, let's start with the beginning, namely, do you believe that a church that conducts marriages for heterosexuals should be required to conduct marriages for homosexuals, with no deference being given to religious doctrine or beliefs?
8.4.2009 11:38am
John D (mail):
Troll_dc2,

Do I believe that a church should be legally obligated to perform same-sex marriages? Certainly not.

Do I think any church in the United States is ever likely to find itself in this situation? Certainly not. Churches already have the uncontested right to refuse to solemnize legal marriages. This only adds same-sex marriage to a list that includes marriage after divorce and interfaith marriage.

Let me throw the question back at you:

Should the objections of religious groups opposed to same-sex marriage prevent religious groups supportive of same-sex marriage from providing legal validity to the unions they solemnize? This religious freedom thing cuts both ways.
8.4.2009 12:04pm
cmr:
Thanks for that, John D. I was just about to post the part people don't mention when it comes to the idea of religious liberty. For ministers to legally solemnize marriages, they have to be endowed with that power by the State. It's doubtful the State would ever force a church to marry a same-sex couple, but it could say that ordained ministers cannot refuse to perform legal marriages lest their ability to perform any marriages be taken away.
8.4.2009 12:18pm
troll_dc2 (mail):
John D:

Should the objections of religious groups opposed to same-sex marriage prevent religious groups supportive of same-sex marriage from providing legal validity to the unions they solemnize? This religious freedom thing cuts both ways.


You need to be more specific. What sort of objections, and how would they prevent SSMs? If the objections involve helping to pass legislation and referenda, then the answer is yes. They have a First Amendment right to urge the passage of legislation and the adoption of constitutional amendments. Did you have anything else in mind?

@ cmr:

For ministers to legally solemnize marriages, they have to be endowed with that power by the State. It's doubtful the State would ever force a church to marry a same-sex couple, but it could say that ordained ministers cannot refuse to perform legal marriages lest their ability to perform any marriages be taken away.



So you really think that the state can tell an ordained minister to perform a SSM that he is opposed to on religious grounds? I do not see how that can fly constitutionally.
8.4.2009 12:29pm
cmr:

So you really think that the state can tell an ordained minister to perform a SSM that he is opposed to on religious grounds? I do not see how that can fly constitutionally.


This is why people want strong religious exemptions, and why they don't trust any court that would rule unconstitutional the people's right to define marriage. Because if not, yes, I do think this could happen. I think the State can say if you don't perform legal marriages, it's discriminatory to gays and lesbians and that ordained minister could lose his license to perform them.

People often say that many of these instances of the church and SSM butting heads is because of anti-discrimination policy and not SSM. But the law doesn't work like that. It's all about precedence. Like Volokh has said, slippery slopes exist here...it's just some people like what's at the bottom so they don't mind it.
8.4.2009 12:52pm
troll_dc2 (mail):
I think that without a statutory religious exemption, not much would change. The reason is that the Free Exercise Clause would protect the ministers and the churches, regardless of the effects on gay people. All that a statutory exemption does is to avoid the constitutonal issue and to define more precisely where the line should be drawn.
8.4.2009 1:00pm
cmr:
I'd support statutory exemptions, and even I can see the obvious counterargument here. It's similar to the argument of why the State isn't constitutionally bound to legalize SSM: the Constitution doesn't say that the State has to ordain ministers to perform legal marriages, and the State refusing to wouldn't infringe on people's right to practice their religion.
8.4.2009 1:23pm
troll_dc2 (mail):
Suppose that a state recognized only marriages performed by a minister and that, for religious reasons, no minister would perform a SSM. Would the failure to recognize a non-religious alternative violate the First Amendment (i.e., the Establishment Clause)?
8.4.2009 1:39pm
John D (mail):
I support statutory exemptions. Existing law permits clergy to refuse to officiate at weddings for whatever reason. There is no reasonable objection to further codifying this. I have have much recent contact with people advocating for same-sex marriage. The consensus on this side is clearly that no clergy should be forced to officiate at marriages.

I still reserve the right to resent the meddling by opponents to same-sex marriage in the religious practices of my denomination. Their religious precepts have no place in civil law, especially as they interfere with my freedom of religion.

Limits to religious freedom should only be in the face of serious breaches of public policy. Since we cannot forbid people from forming same-sex unions, there is no rational public policy in forbidding the legal recognition of these unions. That it offends some people is not sufficient reason to limit the civil rights of those who wish to join in these unions.
8.4.2009 1:39pm
Chimaxx (mail):
troll:
let's start with the beginning, namely, do you believe that a church that conducts marriages for heterosexuals should be required to conduct marriages for homosexuals, with no deference being given to religious doctrine or beliefs?


Troll: No one serious believes this. Catholic churches are not required to marry divorcees; rabbis are not required to perform interfaith marriages. No church, synagogue, mosque or other house of worship is required to conduct a marriage that is contrary to its faith. Same-sex marriage doesn't change that.

Do you believe that a church that believes that same-sex marriages are equal to mixed-sex marriages should be allowed to conduct same-sex marriages and have them equally recognized by law?
8.4.2009 1:41pm
troll_dc2 (mail):

Do you believe that a church that believes that same-sex marriages are equal to mixed-sex marriages should be allowed to conduct same-sex marriages and have them equally recognized by law?



No. The reason is that the church does not get to decide whether same-sex marriage is allowed by law. Marriage is something defined by the government, for better or worse.
8.4.2009 1:46pm
Danny (mail):
I still don't see why religious people would want an exemption specifically for selling something to people involved in an SSM ceremony and not say to renting an apartment to a same-sex couple or letting them eat in their restaurant on Saturday night. It's the existence of the marriage or relationship that they have a problem with (why is marriage even "worse", even if they are dating it is still homosexuality), not act of pronouncing secular vows and signing a civil marriage certificate per se. Letting them have a house and go out to eat is furthering the relationship.

It's also another case in which society privileges the religious over the non-religious. If you're atheist and you want to pull your daughter out of school and keep her as a prisoner in the home then you're a bad parent, but if it's for religious reasons then you have "sincere beliefs". If you want to take drugs then you can't, but if it's part of your religion we should make an exception. You don't want SSM for political reasons and you're a bigot, but if you believe in a man in the sky and hold this opinion you're not.
As someone who does not believe in the supernatural (nor was I raised to believe in it) I do not see why our legal system should be set up this way.
8.4.2009 2:40pm
John D (mail):
Troll,
The reason is that the church does not get to decide whether same-sex marriage is allowed by law. Marriage is something defined by the government, for better or worse.


Certainly if the church does not get to decide if same-sex marriage is allowed by law, then the church should also not get to decide if same-sex marriage is forbidden by law.

I'm fine with the idea of the law remaining religiously neutral on this and other matters.

After all, if we ban same-sex marriage because it offends the religious sensibilities of some people, why do we not also ban pork and alcohol? Obviously, if we're going to codify religious objections into law, why stop at same-sex marriage? (Excuse me while I stock up on prosciutto and wine.)

If, on the other hand, laws should be based on rational public policy and treat all citizens equally, then perhaps we should ignore some people's objections to same-sex marriage. "You don't have to have one, nor does your clergy ever have to officiate at one."
8.4.2009 3:31pm
troll_dc2 (mail):

I still don't see why religious people would want an exemption specifically for selling something to people involved in an SSM ceremony and not say to renting an apartment to a same-sex couple or letting them eat in their restaurant on Saturday night. It's the existence of the marriage or relationship that they have a problem with (why is marriage even "worse", even if they are dating it is still homosexuality), not act of pronouncing secular vows and signing a civil marriage certificate per se. Letting them have a house and go out to eat is furthering the relationship.


I can assure you that they do want the exemption for renting an apartment. They would put it in a fair-housing law. I recall seeing cases on a landlord's refusal to rent to, or to evict, unmarried (straight) couples due to their religious objections. I cannot believe that they would not act the same way toward gay couples. You will find decisions under state laws forbidding marital-status discrimination.


It's also another case in which society privileges the religious over the non-religious. If you're atheist and you want to pull your daughter out of school and keep her as a prisoner in the home then you're a bad parent, but if it's for religious reasons then you have "sincere beliefs". If you want to take drugs then you can't, but if it's part of your religion we should make an exception. You don't want SSM for political reasons and you're a bigot, but if you believe in a man in the sky and hold this opinion you're not.

As someone who does not believe in the supernatural (nor was I raised to believe in it) I do not see why our legal system should be set up this way.

I know where you are coming from, but you exaggerate. Anyway, try to deal rationally with the Free Exercise Clause.
8.4.2009 3:36pm
troll_dc2 (mail):

Certainly if the church does not get to decide if same-sex marriage is allowed by law, then the church should also not get to decide if same-sex marriage is forbidden by law.



The church does not make either decision. Its members may campaign against allowing same-sex marriage, and the church itself may use its influence on legislators and voters, but the decision is made by legislators and voters.

You're just unhappy with how things are.
8.4.2009 3:40pm
John D (mail):
Troll,

Of course I'm unhappy with how things are. That's no secret. Universal recognition of my marriage would be a net benefit to me. That certain states and the federal government do not recognize my marriage has caused problems and inconveniences for me (and worse ones could happen, though they have not).

If a law is going to trouble me (and many others) we have cause to argue that such law should represent a clear public good, not simply the animus of a large fraction of the population.
8.4.2009 4:03pm
troll_dc2 (mail):

If a law is going to trouble me (and many others) we have cause to argue that such law should represent a clear public good, not simply the animus of a large fraction of the population.


That's a matter for the legislature to decide.

I too have a personal interest in having SSM recognized. But I still think it important not to let desires interfere with thought.
8.4.2009 4:17pm
Chimaxx (mail):
Okay, troll:

Let's say for the sake of argument that everyone reasonable agrees with the two extremes of the argument:

* Clergy should never be legally compelled to participate in a marriage that violates their faith.

* County clerks cannot refuse to issue a marriage license because of their religious convictions, no matter whether they object to the marriage based on the sex of the partners (where same-sex marriage is legal), the previous divorce of one or both partners, or the mixing of faiths within the marriage. Nor can Quakers or others whose faith consider same-sex and mixed-sex marriages equal issue same-sex marriage licenses in states that do not permit such marriages. They are agents of the state, and if they cannot execute their duties as outlined by the state, they are in the wrong job.

That leaves all the trickier cases in the middle--from religiously affiliated banquet halls asked to host the wedding reception to religiously owned hospitals and charities asking for exceptions to the law for either their employees (hiring and firing decision, insurance) or their patients (visitation, etc.) to florists and photographers asked to provide wedding services to individual landlords.

Do we draw a bright line at the church door?
8.4.2009 4:44pm
troll_dc2 (mail):

Do we draw a bright line at the church door?



Part of your trickier-case question has already been answered by Congress and the Supreme Court, alas.


from religiously affiliated banquet halls asked to host the wedding reception to religiously owned hospitals and charities asking for exceptions to the law for either their employees (hiring and firing decision, insurance) or their patients (visitation, etc.) to florists and photographers asked to provide wedding services to individual landlords.



Section 702 of the Civil Rights Act of 1964 allows religious entities (religious corporations, associations, and educational institutions) to discriminate on the basis of religion in the employment of any person for any position. This provision was upheld unanimously by the Supreme Court in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987), which involved a gymnasium open to the public.

I would allow religiously affiliated banquet halls to refuse to host the reception. This is church door plus.

The hospitals already can discriminate in employment (although state law can overrride Title VII here because of the way the preemption provision is written). I would not allow them to discriminate against patients and their visitors.

The florists and photographers give me a hard time. I can see the arguments both ways. I am not sure how I would rule if I were the judge.
8.4.2009 5:13pm
Danny (mail):
I am pretty much in agreement with troll about the exemptions. I am largely indifferent to these exemptions, and I really don't see it being a frequent problem in practice because a homophobic Mormon or fundamentalist Christian caterer or whatever would be about as welcome as botulism at most gay weddings, let alone forced to participate. Many gay people might even prefer to deal only with other gay people for an SSM ceremony. But in principle of fairness, whatever they get to do to gay people, gay people and others be allowed to do back to them tit-for-tat, right? I still don't see why "deeply held" philosophical or cultural beliefs or ethnic separatism is less "sincere" than religious convictions. Religion is important to many people but so are many other kinds of identity.



Nor can Quakers or others whose faith consider same-sex and mixed-sex marriages equal issue same-sex marriage licenses in states that do not permit such marriages.


Only the government can issue a marriage license. Maybe you mean a marriage certificate? Churches that marry gay people can and do issue religious marriage certificates to gay couples, even though they carry no legal weight. Please correct me if I am wrong on this.
8.4.2009 5:34pm
Chimaxx (mail):
No, I meant licenses.

I was harking back to Public_Defender's argument:

If county clerks can withhold licenses against the explicit letter of the law based on their deeply-held religious beliefs, wouldn't that mean that county clerks can provide marriage licenses against the explicit letter of the law if withholding them would violate their deeply held religious beliefs?


Of course, I think neither should be alowed to let his or her deeply held religious beliefs to interfere with the duties as defined in the law, but if one side can do it, there may be an argument that the other can, as well.
8.4.2009 6:14pm
Danny (mail):
Interestingly, in some European countries where there is SSM or comparable civil unions, there are no anti-discrimination laws at all concerning goods and services. The EU is currently debating such a directive.
8.4.2009 6:57pm

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