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May 03, 2013

Religious-freedom protections and marriage legislation in Delaware

A number of law professors (including Tom Berg and I) submitted the other day this letter (Download Delaware letter) to legislators in Delaware, urging them "to ensure that any bill legalizing same sex marriage does not infringe the religious liberty of organizations and individuals who have a traditional view of marriage." This letter is similar to the ones -- which have been posted here at MOJ before -- that the group has submitted in several other states.  The letter is basically consistent with the arguments and proposals contained in this recent article, "The Calculus of Accommodation," by Prof. Robin Fretwell Wilson, which I think is very well done.

Posted by Rick Garnett on May 3, 2013 at 10:46 AM in Garnett, Rick | Permalink

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With all due respect, Professor Garnett, men and women are designed in such a way that one cannot engage in same-sex sexual acts without demeaning the inherent personal and relational Dignity of the human person who, regardless of ancestry, from the moment of conception, has been created in The Image and Likeness of God, equal in Dignity, while being complementary as male or female. Any bill that condones and affirms same-sex marriage, would violate the inherent Right of all persons to be treated with Dignity and Respect, in private and in public, and thus would be a violation of our unalienable Right to Life, to Liberty, and The Pursuit of Happiness.

The fact that there are a multitude of persons who do not respect the fact that Marriage exists for the Good of the husband, the Good of the wife, and The Good of the new Family that is created when a man and woman are united as husband and wife, does not change the fact that every State should protect that which is Good for Marriage and The Family.

Posted by: Nancy | May 3, 2013 11:19:09 AM

To be clear, our unalienable Right to Life, Liberty, and The Pursuit of Happiness has been endowed to us from God, thus the purpose of our unalienable Rights, including our Right to Religious Liberty, is what God intended.

Posted by: Nancy | May 3, 2013 11:46:57 AM

Rick,

A question. Do all the proposals outlined in your letter regarding those with sincere objections to certain marriages apply only to same-sex marriages? May small businesses and individuals who have a sincere religious objection to *any* particular marriage refuse to provide goods or services to the couple planning the marriage or refuse to recognize the marriage after it is entered into? May a Catholic baker, florist, tailor, photographer, etc. refuse to provide goods or services to couples entering second (third, fourth, etc.) marriages? May, say, a branch of Catholic Charities that covers spouses in their health plan refuse to cover spouses if either the employee or the employee's spouse has been previously married and the first spouse is still living?

*Should* Catholic employers and other Catholics refuse to recognize "marriages" they consider to be invalid "in the eyes of God"?

Posted by: David | May 3, 2013 12:02:24 PM

Nancy,

We all know that people disagree as to “what God intended”. Religious freedom (given by God, right?) means that so long as one does not actually harm another, one is entitled to find God’s intentions for themselves without submission to other people’s veto.

sean s.

Posted by: sean samis | May 3, 2013 12:13:47 PM

" May a Catholic baker, florist, tailor, photographer, etc. refuse to provide goods or services to couples entering second (third, fourth, etc.) marriages"

My answer is why should they not have that right ? If there is a Seventh Day Adventist wedding photographer in town that thinks the Mass is a creation by the devil why should I have a right to compel her or his presence to help may my Nuptial Mass the most special day on earth ?

There are of course other issues beyond religion such as compelled Speech issue if a few of those occupations.

I was really struck by this article by Dan Crane I read the other day "Gay Wedding Cakes and Liberalism "

http://clrforum.org/2013/04/22/gay-wedding-cakes-and-liberalism/

that had I think two very good quotes that we should paragraphs stand back , take a breath and think about :

"much as possible, let’s not decide these questions in the arena of the state. Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations. Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions. Let’s not fight another Thirty Years’ War.”

and

Since the state regulates adoptions, it must decide whether gay people can adopt. And there are of course other examples. But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to. The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of meaning and morality that require choosing between contending world views. This isn’t always possible, but it’s possible much more of the time than it happens.


Posted by: James H | May 3, 2013 12:30:06 PM

David's questions (addressed to Rick) are quite interesting. I remain unaware of any good reason to treat discrimination on the basis of sexual orientation differently from discrimination based on race. I admit to not being aware of the precise contour of laws against racial discrimination, but I am also quite unaware of only one circumstance in which one of those discriminatory purposes is "more acceptable" than the other: that being the decision of a priest/minister or a church to participate in a wedding ceremony contrary to their beliefs.

sean s.

Posted by: sean samis | May 3, 2013 1:03:22 PM

I need an editor; should have written: "... I am aware of only one circumstance ... "

Posted by: sean samis | May 3, 2013 1:05:21 PM

James H.,

For those who agree that as "much as possible, let’s not decide these questions in the arena of the state," should they favor the kind of legislative protection for religious organizations and individuals that Rick Garnett's letter proposes, or should they oppose it? After all, the letter proposes to settle most questions in advance by legally guaranteeing all kinds of exemptions.

Posted by: David | May 3, 2013 1:37:36 PM

James H;

My objection to Dan Crane’s article is that the “classical liberal” solution (as Dan presents it) fails to address the ability of hostile majorities to limit or destroy the rights of minorities. The whole purpose of recognizing rights is to protect them from despotic or hostile majorities; a solution letting the market "protect" these rights turns that purpose on its head.

Such a solution might be acceptable regarding commercial matters but human rights are not commercial matters. Individual rights have no meaning if “the marketplace” can destroy them.

A marketplace solution to a human rights question is appropriate only if we regard individual rights as commodities; available only to individuals with the means to secure them, and limited by supply and demand and popular opinion. It seems a cavalier attitude towards rights, and I suspect advocates for such solutions suggest them only because they are confident they can secure their own rights.

James, individual rights are not an economic item. Feel free to put yours on the market, but not mine nor anyone else’s.

Why shouldn’t “a Catholic baker, florist, tailor, photographer, etc.” have the right to “refuse to provide goods or services to couples entering second (third, fourth, etc.) marriages”?

Because if Catholic businessperson have this right, all business persons have this right.

Because any businessperson who has this right can also refuse goods or services to a FIRST marriage; they could refuse goods or services to a first interracial marriage, or a first marriage between two black persons. Or any other marriage; including a First, Catholic marriage.

Why should this "right" be denied? Because there is no rational limit to it. If anyone’s rights are insecure, no one’s rights are secure.

sean s.

Posted by: sean samis | May 3, 2013 1:42:03 PM

Nancy, look up "Androgen insensitivity syndrome" (especially, "Complete Androgen insensitivity syndrome") and see you still wish to hold to: "the human person...from the moment of conception, has been created in The Image and Likeness of God, equal in Dignity, while being complementary as male or female."

Or at least admit, as regards sexuality, that there really are more things in heaven and earth than are captured by your neat distinctions.

Posted by: sam | May 3, 2013 1:42:50 PM

" I remain unaware of any good reason to treat discrimination on the basis of sexual orientation differently from discrimination based on race."

I hear this assertion and it often seems to go unchallenged a good bit.

Dan Crane who I quoted above addresses this in a comment :

"Racial discrimination is quite different. For several hundred years, the state enforced a racial caste system, first through slavery and then through state-sanctioned Jim Crow segregation. Even with the end of formal state-sanctioned caste, African Americans were effectively shut out of mainstream economic life by the lingering vestiges of state-sponsored racism. The 1964 Civil Rights Act was necessary to break the state-imposed caste system.

Although there has certainly been discrimination against gay people, I don’t think that gays are systematically shut of mainstream economic life. A blurb from a 2012 CNN Money article:

“[Gay] [r]espondents not only reported significantly higher annual incomes — $61,500 compared with the national median of $50,054 — but they also carried about $4,000 less in debt than the average American and had $6,000 more in household savings. They were even slightly more likely to have jobs in the first place, with an unemployment rate of 7% versus the national rate of 7.9%.”

I have to say I agree with Crane on this. While the Civil Rights Legislation was necessary the ways it was implemented even while perhaps necessary had some collateral damage.

I don't think I am alone as being one of those Law Student that had had a WTH moment on learning how the Commerce Clause has been expanded. Having a Const basis to remedy a State Sanctioned regime of segregration of course required it also meant that it helped play a expanded Federal Power in untold number and unrelated facets of life. THe Commerce clause was a part of that of ocurse.

Perhaps , even if one saw the need for it, this expansion of Fed Power can be viewed as regretable.

Again is the situation so dire against LBGT people that State Power should compel Speech, to compel association at a religious ceremony, etc , or should we worry how these steps to compel a gay wedding cake might affect other things.

Posted by: James H | May 3, 2013 1:45:01 PM

Sean, what correlation are you making between ancestry and sexual preference or orientation?

Posted by: Nancy | May 3, 2013 1:51:17 PM

Sean, how does the fact that some persons have an androgen disorder change the nature of same-sex sexual acts?

Posted by: Nancy | May 3, 2013 1:56:42 PM

David -- with respect to your comment / question about the proposals: The letters have all included proposed statutory language. I'm not sure if you've had a chance to read that language, but the proposed accommodations are not limited to those whose religious objections run to same-sex marriage. (The letter has a footnote suggesting that a legislature could, if it wanted, change the language so that the accommodation is not available for those who object to inter-racial marriage.) Our thinking has always been that, in the real world, no one is going to invoke an exemption in a case involving, say, a second-marriage-without-an-annulment-of-the-first case. And, in any event, the marriages you raise are rarely, in the real world, an issue because they do not come within classes that are covered by antidiscrimination laws. (*Should* people who invoke the exemption in the case of a same-sex ceremony also, to avoid being thought hypocritical, also invoke it the the second-marriage case? Maybe so. But that's a different issue, it seems to me, from whether an accommodation should be available.)

Posted by: Rick Garnett | May 3, 2013 2:02:50 PM

"how does the fact that some persons have an androgen disorder change the nature of same-sex sexual acts?"

Why don't you do a bit of reading on "Complete Androgen insensitivity syndrome" (the wiki page is pretty good)? You'll find that your neat, absolutist distinction between male and female is bogus and that the idea of "same-sex sexual acts" is problematic in some cases.

Posted by: sam | May 3, 2013 2:13:32 PM

Rick,

Thanks for your response. I did read the letter itself, but not the footnotes. I am afraid they are intimidating to a non-lawyer like myself.

You say: "*Should* people who invoke the exemption in the case of a same-sex ceremony also, to avoid being thought hypocritical, also invoke it the the second-marriage case? Maybe so."

This is a question which bothers me very much. The fact that there is no serious expectation that even the most devout Catholics (or other religious people) will have no objection to, say, providing wedding cakes for what they consider adulterous second (third, fourth, fifth) non-marriages indicates, to me, that refusing to provide a wedding cake for a same-sex marriage is true discrimination. It indicates a special animus against homosexuality but in some sense, at least, a tacit approval of adultery.

From a Catholic point of view, is someone who willingly provides goods or services (photography, flowers, cakes, etc.) for same-sex weddings doing something morally objectionable? Should a local bishop warn Catholic business owners not to supply cakes for same-sex weddings? Is providing a cake for a same-sex wedding material cooperation with evil?

Posted by: David | May 3, 2013 2:41:10 PM

"Our thinking has always been that, in the real world, no one is going to invoke an exemption in a case involving, say, a second-marriage-without-an-annulment-of-the-first case."

In a small community, let's say, it would be well known that such and such a person who is getting re-married never received an annulment. Why would a florist not invoke such an exemption, given such a marriage violates what is deemed against God's law (per the gospels) & the florist wishes not to directly further and/or endorse such a marriage in this fashion?

"covered by anti-discrimination law"

To my knowledge, there are various laws in various locales that bar discrimination based on marital status. For instance, just to cite an example quickly found, "Colorado law prohibits such discrimination based on race, color, national origin, ancestry, sex, sexual orientation, creed, religion, disability (mental and physical), familial status (housing only), marital status (housing and public accommodations only), marriage to a co-worker (employment only), and age (employment only)."

"provide goods or services that assist or promote the solemnization or
celebration of any marriage"

The letter underlines the breadth of these proposals. They are not limited to florists or wedding photographers. A wedding has a myriad of things connected to it and "goods or services" can be any number of things. Reference is made in a comment to "presence" -- but "providing goods or services" goes beyond that. And, to repeat an old theme, if a person that runs a business in public accommodations believes that women should be kept at home, even if the belief is religious, the person does not have a right to refuse service to her.

sean might appreciate this article:

http://wakeforestlawreview.com/a-unique-religious-exemption-from-antidiscrimination-laws-in-the-case-of-gays-putting-the-call-for-exemptions-for-those-who-discriminate-against-married-or-marrying-gays-in-context

Posted by: Joe | May 3, 2013 3:13:46 PM

Joe - I am familiar with the Curtis article. He is a great scholar, but regrettably off-the-mark on this issue. The "this is just like racism" claim certainly has rhetorical power, and can be effective in intimidating those about whom it is made, but it is, I think, unsound and unfair.

Posted by: Rick Garnett | May 3, 2013 3:25:50 PM

Joe - I am familiar with the Curtis article. He is a great scholar, but regrettably off-the-mark on this issue. The "this is just like racism" claim certainly has rhetorical power, and can be effective in intimidating those about whom it is made, but it is, I think, unsound and unfair.

Posted by: Rick Garnett | May 3, 2013 3:25:51 PM

Well, I did after all encourage sean to read it, Prof. Garnett :)

Also, the article does not merely say "just like racism." From the opening:

"Why should gays be treated differently from every other group protected by antidiscrimination laws, including Americans of African descent and women?"

I think sex discrimination is a core aspect of what is involved in barriers to same sex marriage, so the latter point is of particular interest.

Anyway, thanks, but regrettably, with respect, I believe you are off-the-mark on this issue.

Posted by: Joe | May 3, 2013 3:35:13 PM

James, when I wrote that “I remain unaware of any good reason to treat discrimination on the basis of sexual orientation differently from discrimination based on race" you replied that “I hear this assertion and it often seems to go unchallenged a good bit.”

It’s easily challenged: just provide a good reason to etc. You see it a lot because there’s almost nothing to say in response that stands up to scrutiny.

You quoted Dan Crain’s comment about the economic status of gay and lesbian persons; how is that at all relevant? When did economic success work to DIMINISH a person’s rights? Dan’s comment treats individual rights as an economic asset; the better off you are economically, the fewer rights you have.

Gay and lesbian persons have escaped economic loss only because they could escape detection. Now they want to come out from the shadows. Their rights and their need for protection from discrimination are not qualified by economic status. Strangely, I thought rights are supposed to be God-given, not bestowed by any marketplace.

Does the relative economic advantage of gay and lesbian persons mean they have lesser rights? Are anyone’s rights predicated on being poor or disadvantaged? Would you accept a means test for your rights?

Do gay and lesbian persons have fewer rights because of the group’s higher AVERAGE wealth? Would a poor gay couple have fewer rights than a rich black couple? How would that be sensible? Is it sensible to give the State the power to determine one’s rights based on economic status? Would you agree to a general rule that the wealthy SHOULD have fewer rights than the poor?

It’s odd to suggest we should punish gay and lesbian persons for their hard work and success this way. Very odd indeed. Why not punish successful people regardless of sexual orientation? Why punish successful people at all. All very odd...

You ask, “is the situation so dire against LBGT people that State Power should compel Speech, to compel association at a religious ceremony, etc , or should we worry how these steps to compel a gay wedding cake might affect other things.”

How dire does your situation need to be for you to have your rights? When did that become a consideration? Is this something the State should consider before protecting people’s rights?

If a person chooses to engage in a business providing services to weddings, then they should serve any member of the general public who can and will pay. Providing these services constitutes neither speech nor association; it’s a commercial transaction and nothing more. Deliver the cake and leave. Turning commercial transactions into speech undercuts all our other liberties. Perhaps we should just abandon freedom of religion altogether. This is a principle that would dissolve all other rights.

Does a cabbie who gives someone a ride to church endorse their religion? If someone buys a suit or dress to go to church in, does that sale represent an endorsement by the tailor?

Most importantly: freedom of religion means that one person does not bear the burden of anothers’ beliefs. If your beliefs are that strict with regard to marriage, and yet you CHOSE to make a living selling wedding cakes, you CHOSE this quandary. Its burden is YOUR CHOICE. What justifies putting YOUR BURDEN on others?

sean s.

Posted by: sean samis | May 3, 2013 3:55:45 PM

Nancy,

A preliminary: sexual orientation is not a “sexual preference”; it is an innate, immutable attribute every person has. I realize you want to minimize sexual orientation.

Sexual orientation correlates to race for these reasons: neither is a choice, both are biological traits conferred by God or Nature, neither works a harm to others; both have been the subject of severe animus; and violence.

I don’t see how “androgen disorder” matters in this context at all. This is too “out of right field” for me to respond further; you might explain your interest to me.

sean s.

Posted by: sean samis | May 3, 2013 3:59:03 PM

Addendum: The article provides an explanation as to why sexual orientation should not be different. I respect that some find this "unsound" but not sure how it is "intimidating," especially as compared to let's say claims (sometimes in aggrieved or concerned tones as David noted previously) religious liberty is being threatened here. Since I and others respect that, though disagree on where it would lead in such and such a scenario, it might be "intimidating" to be deemed to violating it. As a whole, I am left with deciding on the merits.

Posted by: Joe | May 3, 2013 4:01:57 PM

Joe,

I almost missed the Curtis article. I'll try to read it over the weekend.

Thanks.

sean s.

Posted by: sean samis | May 3, 2013 4:05:35 PM

Joe -- the point was that, in my view, the "this is just like racism" claim is often employed, and successfully, to intimidate. This tactic can be successful because, of course, racism is wrong. If it is in fact the case that thinking that, because of what "marriage" is, the sex of the would-be spouses is relevant but their race is not is meaningfully like thinking that a person's race is connected to that person's dignity or moral worth, then one should not think, and it is wrong to think, that the sex of would-be spouses is relevant. The notion that, in our current context, it is similarly equivalent, in terms of the potential for intimidation, to say "the policy you support threatens religious freedom" and to say "the policy you support is racist" is highly implausible.

I am confident that -- like you, apparently -- I resolve all contested questions "on the merits."

Posted by: Rick Garnett | May 3, 2013 4:10:26 PM

Joe -- the point was that, in my view, the "this is just like racism" claim is often employed, and successfully, to intimidate. This tactic can be successful because, of course, racism is wrong.

I don't know how often this happens in this context (the argument is still somewhat controversial and at times the person is not "intimidated" -- they simply see the truth of the matter), but suffice to say, (1) that article and comparable appeals doesn't intimidate ('frighten' or 'overawe'); it makes a case (2) the overall principle can apply to other things, like religious liberty, which also is "obviously" present. But, like "racism," violations of it can be not as clear-cut as some imply

If it is in fact the case that thinking that, because of what "marriage" is, the sex of the would-be spouses is relevant but their race is not is meaningfully like thinking that a person's race is connected to that person's dignity or moral worth, then one should not think, and it is wrong to think, that the sex of would-be spouses is relevant.

There are similarly various disputes on how to accommodate religion properly. The "intimidation" would come because the target would be uncomfortable about arguing for the differences to more clearer cases. I don't see much of that coming in the case of SSM -- I just see people strongly opposing the arguments.

The notion that, in our current context, it is similarly equivalent, in terms of the potential for intimidation, to say "the policy you support threatens religious freedom" and to say "the policy you support is racist" is highly implausible.

In various cases, people strongly respect religious freedom, especially to avoid liability.

I am confident that -- like you, apparently -- I resolve all contested questions "on the merits."

Sure.

Posted by: Joe | May 3, 2013 4:29:56 PM

Rick,

You say: "*Should* people who invoke the exemption in the case of a same-sex ceremony also, to avoid being thought hypocritical, also invoke it the the second-marriage case? Maybe so."

This is a question that seems very serious to me. Your proposed legislation would grant to any person with a "sincere" religious reason the right not to recognize *any* marriage (even an interracial marriage, if the legislators don't choose to exclude interracial marriages in the law). The Catholic Church (and some others) consider subsequent marriages after divorce to be adulterous, and yet you say you do not expect anyone to make use of the religious exemption to refuse to recognize an "adulterous" marriage. This can be looked at two ways, it seems to me. One is that it is inconsistent (hypocritical?) of religious people to recognize some legal marriages (adulterous ones) but not others (same-sex ones). The other way to look at it is that what people are claiming to be religious objections to same-sex marriages are actually acts of anti-homosexual bigotry.

Is the religious objection to same-sex marriage truly religious? How do you tell? Do religious people who believe marriage after divorce is adultery but have no qualms about providing flowers or cakes or health insurance to the divorced and remarry object to same-sex marriage because it is a worse sin in their estimation than adultery? Or are they prejudiced against gay people in a way that they are not prejudiced against adulterers?

It seems to me that there is a very special animus against same-sex sexual behavior that there is not against opposite-sex sexual behavior. Sex before marriage is the rule for heterosexuals and cohabitation on the verge of becoming the rule. "Not only are couples living together longer before marriage, many become pregnant before marriage. Close to half of heterosexual women (48%) between 2006 and 2010, ranging in age from 15 to 44 years, reported they were not married to their partner or spouse when they first began cohabitation." Out-of-wedlock birth is at 41%. My favorite statistic of late: Of women with two or more children, 28% have had the children with two or more fathers. And yet same-sex marriage for many Catholics is one of the "five non-negotiables."

Posted by: David | May 3, 2013 5:27:43 PM

BTW, italics tags did not work for me, but I gather people know who said what in that last comment.

I will say one more thing. I understand how racism has special force in this country, but there is still much debate. Many, e.g., will not be 'intimidated' or otherwise convinced that affirmative action, profiling or apparent disparate impact are cases of "racism." Many of these will be more sympathetic about various religious liberty appeals. This goes up to the US Supreme Court.

Of course, if the argument is CORRECT, it might be "intimidating." I have seen people upset when Loving v. Virginia is cited in these cases, for instance, since that case seems 'obvious' and SSM does not. Now, Mildred Loving supports the connection, but anyway, if the case is correct, and people strongly make it because discrimination here is wrong, the 'intimidation' might come because the case is so strong. The same might be true in other cases.

Anyway, David hits an important case & I appreciate that the matter -- raised before -- is being addressed, since it is important. Have a nice weekend all.

Posted by: Joe | May 3, 2013 6:05:17 PM

"If a person chooses to engage in a business providing services to weddings, then they should serve any member of the general public who can and will pay. Providing these services constitutes neither speech nor association; it’s a commercial transaction and nothing more. Deliver the cake and leave. Turning commercial transactions into speech undercuts all our other liberties. Perhaps we should just abandon freedom of religion altogether. This is a principle that would dissolve all other rights.

Does a cabbie who gives someone a ride to church endorse their religion? If someone buys a suit or dress to go to church in, does that sale represent an endorsement by the tailor?

Most importantly: freedom of religion means that one person does not bear the burden of anothers’ beliefs. If your beliefs are that strict with regard to marriage, and yet you CHOSE to make a living selling wedding cakes, you CHOSE this quandary. Its burden is YOUR CHOICE. What justifies putting YOUR BURDEN on others?"

Sean I am not that comfortable in saying there is such a separation of Church and work or Faith and work though I think it is often assumed.

I think reasonable minds can conclude there is a difference between " What you are gay well I am not serving you lunch" and then being compelled to enhance a same sex marriage ceremomy that one might have religious objections too.

I also think in some senses you downplay some related First Amendment issues for instance as to people that would be compelled to photo a same sex wedding. Its worth noting that these lawyerts that filed a brief in support of same sex marriage also get a Photographer in some cases would have First Amendment rights violated

http://www.volokh.com/2012/11/02/amicus-brief-in-elane-photography-v-willock-the-new-mexico-wedding-photography-case/

Posted by: James H | May 3, 2013 6:52:29 PM

Legalizing the same sex marriage I'm not against of it, let's all live happy and have equal rights.

Posted by: Destin Fishing | May 4, 2013 1:35:36 AM

To have equal Rights is to recognize that from the moment of conception every son or daughter of a human person is dignified and thus worthy of being treated with respect in public as well as in private.

Posted by: Nancy | May 4, 2013 10:49:47 AM

"To have equal Rights is to recognize that from the moment of conception every son or daughter of a human person is dignified and thus worthy of being treated with respect in public as well as in private."

I am Wedding Coordinator my job is to help make a wedding ceremony the best possible. That is to very much in a way help enhance the externals of a Sacrament. RIGHTS often come into conflict. I am really baffled how this person's human dignity of not violating his or her Faith has no standing at all and thus would be veteoed if that person has religious objections

Posted by: JH | May 4, 2013 12:22:44 PM

At the end of the Day, truth and anti truth cannot be reconciled through a "calculus of accommodation", for once you subtract an element from the truth, or add a false element to the truth, the truth, having thus been compromised, is no longer the truth.

Posted by: Nancy | May 5, 2013 10:05:36 AM

Rick,

Regarding “in my view, the ‘this is just like racism’ claim is often employed, and successfully, to intimidate. This tactic can be successful because, of course, racism is wrong.”

I will take up the matter of intimidation second, but first the matter of the claim’s effectiveness.

The claim is employed because it is plausible and reasonable as well as effective. If it is implausible or unreasonable then that fact would be easily shown. I keep coming back to it because even when facts are put forward against the comparison, they don’t survive scrutiny.

If this “tactic” is successful, it is because it is hard to refute. If you think I am wrong, give it your best shot.

I can’t speak for anyone but myself, but intimidation is an odd term here. How could this argument “intimidate” except those who don’t have a good response? If there is a good argument showing that racial discrimination is significantly different from sexual-orientation discrimination, then the argument would back-fire. But it does not back-fire.

My thought: calling this valid claim “intimidation” is itself an attempt at intimidation, it resembles an effort to make supporters of marriage equality afraid to use this perfectly valid claim: discrimination on the basis of sexual orientation is substantially the same as racial discrimination. I don’t think attempt to intimidate will work. This valid claim is not going away. It might not win at first, but it will in the end.

Regarding “If it is in fact the case that thinking [47 words omitted] that the sex of would-be spouses is relevant.”

I confess I have no clear understanding of what you were getting at in these 64 words. I actually tried to outline it, and failed. I will say that sexual orientation is just as much connected to a person’s dignity and moral worth as their race. But the rest of this I admit I cannot parse out. I’m sure that is my fault.

A policy of generous exemptions for religious-motivated discrimination on the basis of sexual orientation threatens religious liberty and is incoherent unless the same exemptions are available to religiously motivated racial discrimination. If the latter is unacceptable, then the former falls with it unless we all just agree to abandon reason. I vote No.

sean s.

Posted by: sean samis | May 5, 2013 12:42:07 PM

I’ve read the Curtis paper Joe cited; it’s quite good and its conclusions are dead on. I have few quibbles with it; none that matter much.

Curtis marshals facts to demonstrate why discrimination against gender, race, and sexual orientation are substantially similar. Mere comments that he’s “off the mark” are not credible without addressing Curtis’s substantial evidence and facts. I think he does a very good job of demonstrating that Professor Laycock’s “middle path” will fail to protect religious rights.

sean s.

Posted by: sean samis | May 5, 2013 12:46:19 PM

Clarification: If there is a good argument showing that racial discrimination is significantly different from sexual-orientation discrimination, then that comparison would back-fire.

sean s.

Posted by: sean samis | May 5, 2013 1:08:28 PM

JH, you said it yourself, “RIGHTS often come into conflict.” What many forget is that your rights do not entitle you to burden other people.

If your profession is “wedding coordinator”, you chose the career.

If you have religious objections to contact with Blacks, or to interracial marriages, do you think you should have a right to discriminate racially? If not, what makes sexual orientation a valid basis of discrimination if race is not? Should you be entitled to refuse services to a non-observant Jewish couple? A Hindu couple? Wiccan? A Catholic couple? Why would we protect the religious rights of someone who objects to same-sex marriage but not someone who objects to interracial marriage, or even contact with Blacks? Or who objects to other religions?

The wedding coordinator chose their career. If they are permitted to impose their religious burdens on their clients, then any hope of ending gender, racial, religious, or sexual-orientation discrimination is lost. Good public policy (promotion of liberty and equality) must trump business persons who exposed themselves to the likelihood of serving people they don’t like.

Why should the customer go “somewhere else”? Why not make the discriminator choose a career compatible with their religion and work for the general public?

sean s.

Posted by: sean samis | May 5, 2013 1:14:04 PM

The Volokh thread (covering something he dealt with in the past, so it is shorter than it might be) has various comments (including one "Joe_JP") that suggest problems. There are a range of things that might have an "expressive" character.

It seems to me that the line drawn there is hazy. In fact, one comment there suggested to me it wasn't just photography in all cases, but the breadth of effort and involvement in this case that is cited in the brief. Really gets hazy. I called it a sort of "baby bear" policy.

And, the opening post is not relying on expressive character, to my understanding, but religious liberty. That goes even further than photography. Note that the photographer there was incorporated; it is like if a franchise was involved here. The one person need not do the job. They can, like an assistant at a drug store who might not want to hand out certain drugs, have someone else do it. There might be "room for debate," but that goes both ways since reasonable legislation generally should be allowed.

But what of religious liberty concerns? sean notes that that applies on both sides. That is the charm of public accommodation all comer policies -- the rules are applied to each side. Some customers might not like to associate with blacks or gays or women. But, public accommodation rules require them to if they wish to use goods and services in range of ways.

And, one can imagine a same sex couple who has a marriage for religious reasons. Equal accommodations in "public" places respects their religion, including if the store-owner believes their religion is wrong. Rights conflict here, but one rule again is set for both in a public accommodation, so equal respect for religious liberty is involved.

The same thing arises in the contraceptive mandate realm. Rules apply to public accommodations that serve or employ people outside of the faith. The mandate is part of employee based insurance that allows each individual to make a personal health choice guided by their religious faith. Only looking at one side when being concerned for religious liberty is selective. Public accommodations involve state action & if the government selectively respects the needs of religious liberty there, it is problematic.

I'm glad sean liked the article. I think a good article usually has something wrong with it but if is on the whole worthwhile, it is a good one.

Posted by: Joe | May 5, 2013 3:30:23 PM

There is no correlation between discrimination due to ancestry and discrimination due to behavior. To discriminate against one's personhood due to ancestry would be unjust, whereas to discriminate between appropriate and inappropriate sexual desires or sexual acts and sexual relationships is just.

Posted by: Nancy | May 5, 2013 4:31:14 PM

The fact that persons consent to engage in any type of demeaning act, does not change the nature of the act, nor does desire or behavior change the fact that a man or woman, regardless of behavior, remains a man or woman.

Posted by: Nancy | May 5, 2013 4:45:44 PM

Nancy,

The correlation between racial discrimination and sexual orientation has been described repeatedly. If you have facts or other evidence to refute that correlation, please share.

BTW, Nancy, racial segregation was a discrimination against “inappropriate” behavior; the racist considered any social mixing of the races inappropriate; or at least that’s what they said. Even worse (to them) would be interracial sex or marriage.

But of course, no person has the right to decide that someone else’s behavior is inappropriate unless they can show a harm. The segregationist could show no harm, and neither can the opponent of same-sex marriage.

Like opponents of same-sex marriage, racial segregationists relied on Biblical passages to justify their judgments.

sean s.

Posted by: sean samis | May 6, 2013 9:06:10 AM

Loving v. Virgina supported the right to marry, even if the other person is of a different race. Mildred Loving shortly before she died said this:

"I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights."

http://www.freedomtomarry.org/page/-/files/pdfs/mildred_loving-statement.pdf

The Lovings were not arrested for their love for each other but for "behavior" including living as a married couple in a state that did not recognize it as marriage so they were assumed to be performing sexual acts etc. unmarried. The judge said that God intended the races to be separate. Natural law barred such alleged "marriages." The Loving decision quotes the judge:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."


The USSC rejected this discrimination by "ancestry." Same sex couples also should not be discriminated that way -- the sex or sexual orientation of someone is also inherent. "Sex" in fact is how I see this -- the government is deciding sex classifications are warranted when they are not, and they have a very high test to meet there. It is not met here.

There is no (secular) reason here to show that the union is "demeaning," though marriages occur all.the.time that are pretty demeaning. Also, there is no secular evidence that the sexual behavior is "inappropriate," though again, various types of "sexual desires" might be seen as that if we rely on religious principles.

The fact that the partner "remains a man or woman" is noted, just like someone "remains white or black." Not a reason to deny marriage rights. Or, to give special accommodation for religious purposes.

Posted by: Joe | May 6, 2013 10:44:58 AM

Loving v. Virgina supported the right to marry, even if the other person is of a different race. Mildred Loving shortly before she died said this:

"I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights."

http://www.freedomtomarry.org/page/-/files/pdfs/mildred_loving-statement.pdf

The Lovings were not arrested for their love for each other but for "behavior" including living as a married couple in a state that did not recognize it as marriage so they were assumed to be performing sexual acts etc. unmarried. The judge said that God intended the races to be separate. Natural law barred such alleged "marriages." The Loving decision quotes the judge:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix."


The USSC rejected this discrimination by "ancestry." Same sex couples also should not be discriminated that way -- the sex or sexual orientation of someone is also inherent. "Sex" in fact is how I see this -- the government is deciding sex classifications are warranted when they are not, and they have a very high test to meet there. It is not met here.

There is no (secular) reason here to show that the union is "demeaning," though marriages occur all.the.time that are pretty demeaning. Also, there is no secular evidence that the sexual behavior is "inappropriate," though again, various types of "sexual desires" might be seen as that if we rely on religious principles.

The fact that the partner "remains a man or woman" is noted, just like someone "remains white or black." Not a reason to deny marriage rights. Or, to give special accommodation for religious purposes.

Posted by: Joe | May 6, 2013 10:44:59 AM

It is a self-evident truth that sexual acts and sexual relationships are not equal.

Men and women are designed in such a way that it is physically impossible for same-sex sexual acts to be unitive and procreative, and it is physically impossible for same-sex sexual acts to respect the inherent personal and relational Dignity of the persons involved in same-sex sexual acts. The fact that some persons do not respect Marriage, does not change the fact that the State recognizes that Marriage exists for the Good of the husband, the Good of the wife, and the Good of the family that is created when a man and woman are united as husband and wife. I agree that it makes no sense that we are in a point of Time that one has to "accommodate" a Religious belief that is consistent with a self-evident truth, but then, we are living in a Time of deception.

Posted by: Nancy | May 6, 2013 1:05:34 PM

Nancy, human rights apply to PERSONS; not to acts or relationships. It is self-evident that gay and lesbian persons are PERSONS.

Truly we are living in a Time of Deception if the concept of “religious liberty” is understood to be the liberty to rob others of their rights, to impose ones’ own beliefs on others.

sean s.

Posted by: sean samis | May 6, 2013 1:19:28 PM

The title of this article might put people off, don't let it -- I found the video (Robert George is referenced) quite helpful: it discusses "the point of sex" etc.

http://www.huffingtonpost.com/john-corvino/masturbation-month_b_3199113.htm

Posted by: Joe | May 6, 2013 3:58:40 PM

It appears that the Huffington Post has taken this page down. 404.

sean s.

Posted by: sean samis | May 6, 2013 4:34:15 PM

Men and women are persons,"heterosexual, homosexual, bisexual, transsexual, polysexual" refers to sexual attraction.

Posted by: Nancy | May 6, 2013 5:14:36 PM

Nancy, I agree. Regardless of their sexual orientation, they are persons, and have the rights of all persons.

sean s.

Posted by: sean samis | May 6, 2013 5:46:07 PM

Apologies. I think I left out the final "l."

http://www.huffingtonpost.com/john-corvino/masturbation-month_b_3199113.html

http://rhrealitycheck.org/video/2013/05/02/in-honor-of-national-masturbation-month-heres-a-discussion-of-the-point-of-sex/

Posted by: Joe | May 6, 2013 5:52:13 PM

All persons have the inherent Right to be treated with Dignity and Respect. Any act, including any sexual act, that demeans the inherent personal and relational essence of the human person is not an act of Love, which is why no person or State should be condoning or affirming same-sex sexual relationships and thus same-sex sexual acts. Never underestimate the value of a Loving friendship that desires only that which is Good for the other.

Posted by: Nancy | May 7, 2013 9:34:55 AM

Nancy,

It is apparent that you believe that treating all persons with Dignity and Respect means the State treats them like children; telling them they cannot decide for themselves what demeans them and what does not.

You advocate for a Nanny State. I do not.

I believe that the inherent right to be treated with dignity and respect means that the individual gets to make that decision for themselves; that dignity and respect mean being treated like adults.

sean s.

Posted by: sean samis | May 7, 2013 10:15:09 AM

"All persons have the inherent Right to be treated with Dignity and Respect."

As a basic rule, this is fine, though the state only has a certain amount of power here, and has to follow certain rules. Rules that do not always result in dignity and respect occurring, leaving the responsibility to others. Like a friend should treat you with respect but the state can't force him/her to; the state cannot force a friend to be nice to you when you are sad etc.

"Any act, including any sexual act, that demeans the inherent personal and relational essence of the human person is not an act of Love, which is why no person or State should be condoning or affirming same-sex sexual relationships and thus same-sex sexual acts."

Trying to have the state determine what "love" means is generally a bad idea; it is a concern for private groups, including religions.

I and sean have repeatedly explained why same sex sexual relationships are not "demeaning" etc. but you don't accept it. Which is fine as a matter of personal belief. But, there is no legitimate state purpose to treat same sex relationships differently.

"Never underestimate the value of a Loving friendship that desires only that which is Good for the other."

Like the first quote, this is lovely, but it is not the actual point of dispute. The dispute is that same sex relationships can be good for the other and society in general. You can repeat these things as mantras, which seem to be a sort of ritual (you even cite them in threads about other things), but that is the bottom line. Same sex couples have dignity and respect and deserve it in return. At the very least by the state.

Posted by: Joe | May 7, 2013 10:25:56 AM

Joe, you have failed to show how same-sex sexual acts serve the Good of those persons engaging in them, and thus why same-sex sexual relationships which are not unitive or procreative, should be set apart or sanctified, which is, in fact, the point of the dispute.

Posted by: Nancy | May 7, 2013 6:39:31 PM

"Joe, you have failed to show how same-sex sexual acts serve the Good of those persons engaging in them"

Sexual acts "serve the good" of people engaging them in various ways, including as a means of intimacy and expression of love for each other. This applies to same sex couples too. You failed to refute it.

"not unitive or procreative"

I also said over and over again how this is "unitive" as the word is regularly used. It promotes the union of same sex couples. As my video link suggests, you are using "unitive" in some specialized way that doesn't hold up to scrutiny. As to "procreative," same and different sex couples have sex repeatedly where that is not possible. Senior citizens have sex that is not 'procreative.' It still can be 'unitive' no matter whom the partner's sex is.

"should be set apart or sanctified, which is, in fact, the point of the dispute"

Yes, that is the point of dispute -- that same sex couples can have dignity and respect in same sex unions. Loving friendships being good is not the dispute nor that treating people with dignity and respect is a good thing. You keep on repeating these two things though when only same sex matter is in dispute. Of which I answered along with sean over and over again.

Posted by: Joe | May 7, 2013 7:15:13 PM

BTW, congrats Delaware for passing a law that provides marriage licenses to same sex couples. Welcome to the club.

Posted by: Joe | May 7, 2013 7:18:08 PM

Good answers Joe.

Nancy, you have failed to show that same-sex acts fail to serve the Good of same-sex couples. You claim it, you assert it, but you offer no reasons. Until you can show us reasons, we are all justified in regarding this claim as just your opinion.

Nancy, you have failed to show that same-sex acts are not unitive. Again, you claim it, you assert it, but you offer no reasons. Until you can show us reasons, we are all justified in regarding this claim as just your opinion.

Nancy, you have failed to show why same-sex acts should be set apart for condemnation. Again, you claim it, you assert it, but you offer no reasons. Until you can show us reasons, we are all justified in regarding this claim as just your opinion.

Most importantly, you have failed to show why your opinions should be imposed on others.

sean s.

Posted by: sean samis | May 8, 2013 8:39:51 AM

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