Mirror of Justice

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Thursday, May 9, 2013

Same-Sex Marriage in Minnesota

The Minnesota House passed a same-sex marriage bill today, 75-59.  The predictions are that the Senate will pass the bill (assuming the working out of conforming amendments) on Monday.

For the record, here are two letters that our two groups of religious liberty scholars (including Rick and me in the first group, and Michael Perry and me in the second, pro-same-sex-marriage group) sent to Minnesota legislators arguing for stronger religious liberty provisions.  (The archive of various state letters is here.)  I also gave input arguing for strong religious liberty provisions in MN at earlier times including during the drafting.  In some ways the results are reasonably protective of religious liberty -- partly because the bills incorporate Minnesota's reasonably strong existing exemption from sexual-orientation nondiscrimination laws -- but they also leave some important matters unprotected.

Interestingly, there was a proposed amendment to eliminate the term "marriage" from the statutes and replace it with civil unions for all couples (leaving religions or anyone else free, of course, to perform marriages).  That effort was launched by Republicans, but it got a few DFL (Democratic) votes.  It lost, 111-22.

http://mirrorofjustice.blogs.com/mirrorofjustice/2013/05/same-sex-marriage-in-minnesota.html

Berg, Thomas | Permalink

Comments

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Reference is made on page 6 of the "main letter," e.g., to an area where GLBT are offered various infrastructure and "many" businesses are supportive. Thus, exemptions would not likely cause hardships. Is this the rule applied for other types of exemptions (race, sex etc.) -- not likely to cause hardships?

It is noted that such exemptions might affect not only obtaining wedding photographers (which even Dale Carpenter -- see Volokh Conspiracy -- accepts might raise 1A issues) but things like caterers. But, "mere inconvenience" should not be the test here. Again, is that the test for other types of discrimination? Not serving a person because of race, sex or religion might be based on belief. If there is another shop nearby (though not having exactly what one wants) can we follow that "substantial" burden rule?

The "symbolic harm" of not treating those not served because of their sexual orientation or because their choice of marriage partner is the wrong "sex" also seems to be minimized here. I share sean's comments in a previous thread (connected to Delaware) that different rules for sexual orientation aren't justified. I also share David's curiosity as to how divorce and other "wrongful" marriage conduct is treated differently.

As to the 'civil union' alternative, would all previous marriages provided for by the state also be changed into civil unions, so that the social meaning of the term would be somewhat close to be changed too? A marriage license is a type of civil union by definition. I appreciate the evenhanded nature though given the social understanding (and possible problem with recognition in other states of "civil unions") of "marriage," I would oppose the message sent that protecting same sex couples here requires a new term.

Posted by: Joe | May 9, 2013 9:11:43 PM

[This ground has been covered a lot recently here -- the Rhode Island thread also covers it. David's comment might be there. Both threads have some good remarks]

Posted by: Joe | May 9, 2013 9:13:24 PM

Professor Berg, how do you define Marriage?

Posted by: Nancy | May 9, 2013 9:34:36 PM

Nancy--Civil marriage? Christian marriage? Catholic marriage? They all have somewhat different, although overlapping, definitions. Is that not already so, even apart from same-sex marriage?

Posted by: Tom Berg | May 9, 2013 9:39:38 PM

If you believe there is more than one definition of Marriage, could you define those definitions?

Posted by: Nancy | May 9, 2013 9:44:21 PM

Could you also, for each definition of Marriage state whether it is necessary for each particular marriage to be consummated?

Posted by: Nancy | May 9, 2013 10:11:54 PM

Dale Carpenter provides some remarks here:

http://www.twincities.com/opinion/ci_23200243/dale-carpenter-rites-and-rights-marriage

Posted by: Joe | May 9, 2013 11:46:41 PM

Nancy,

It is not necessary for religious (Catholic) marriages or civil marriages to be consummated in order to be real, valid marriages.

Do we want to have the question raised again as to whether Mary and Joseph were married? Their marriage (according to Catholic dogma) was never consummated, and yet the Holy Family is held to be the model family.

It is becoming a common argument in forums similar to this one for those who oppose same-sex marriage to claim that every child has a "right" to be raised not merely by a mother and a father, but by his or her biological parents. And yet Jesus was raised by his mother and non-biological (step) father.

Posted by: David | May 10, 2013 8:47:49 AM

Nancy,

Marriage: the state of being united to another person in a consensual and contractual relationship recognized by law. In the age of no-fault divorce, consummation is an obsolete concept. It has never been a requirement.

Joe's questions about the exemptions Professor Berg et al. seek remain on point; there is no reason to create any special exemptions for religious objections to same-sex marriage; the exemptions in place for racial and gender discrimination are enough. Religious objections to same-sex marriage do not deserve greater deference and are no more legitimate than religious objections to racial equality or gender equality are.

sean s.

Posted by: sean samis | May 10, 2013 9:37:31 AM

To clarify the no consummation point for Catholic marriages, a marriage that is not consummated is called ratum tantum. A couple whose marriage is not consummated is not bound to each other for life and the marriage can be dissolved. See canon 1142 "A non-consummated marriage between baptised persons or between a baptised party and an unbaptised party can be dissolved by the Roman Pontiff for a just reason, at the request of both parties or of either party, even if the other is unwilling." Normally, the unwillingness to consummate is grounds enough for the dissolution (such an unwillingness flies in the face of one's marriage vows).

If a canon lawyer reads this blog, they might be able to offer some more precision or clarity on this point.

Posted by: CLS | May 10, 2013 10:00:54 AM

Sean, according to your definition of marriage, any consensual and contractual relationship would be a marriage so that in essence, Marriage would no longer be set apart or Sanctified, and thus Marriage, in essence, would no longer exist.

Posted by: Nancy | May 10, 2013 11:06:45 AM

It is, however, a self evident truth that Marriage does exist.

Posted by: Nancy | May 10, 2013 11:12:34 AM

Nancy,

I am not expert in this matter, to say the least. But my understanding is, first, that for Catholic marriage the consummation requirement is an act of uncontracepted intercourse, i.e., an act fully open to life. This, of course, is not a requirement in civil marriage in any state, so far as I know. It is obviously not a requirement in those forms of Christianity that do not oppose contraception per se.

For American civil marriage, to my knowledge (again very basic) consummation is required in some states but not others. Where it is required, it of course makes the marriage only voidable rather than void: it only serves as a ground for one party to dissolve the marriage, not as a precondition that the parties must establish. Therefore, the state will continue to recognize, fully, marriages that the parties stick with out of love and commitment. The existence of no-fault divorce for civil marriage further reduces the importance of the consummation requirement as a ground for voiding any marriage. It's also my understanding that at least some states that allow non-consummation as a challenge explicitly say that the inability to consummate must not be obvious at the time of the marriage. These features, among other things, are why two 75-year-olds contract and continue valid marriages without the state asking anything about it. I'm also not sure whether every state that requires consummation defines the act as sexual intercourse.

I'm not going to give more disquisitions on general questions. You should make your point about the relevance of consummation to this issue.

Posted by: Tom Berg | May 10, 2013 11:40:04 AM

I am in a Loving and committed relationship with my children, and yet, I am not married to my children, thus being in a Loving and committed relationship is not the definition of Marriage.

Posted by: Nancy | May 10, 2013 11:56:00 AM

Thank you for your response to my question, Professor Berg.

Posted by: Nancy | May 10, 2013 12:03:25 PM

Nancy,

You say you are “in a Loving and committed relationship with my children, and yet, I am not married to my children, thus being in a Loving and committed relationship is not the definition of Marriage.”

I have no disagreement with that, but the definition I gave is “the state of being UNITED TO ANOTHER PERSON in a consensual and contractual relationship recognized by law.” It’s not merely my definition, it’s substantially the definition given by the Merriam-Webster dictionary; I modified it to generalize it to include same-sex marriage which the definition does include. See: (http://www.merriam-webster.com/dictionary/marriage).

You are not married to your children (nor I to mine) because this relationship is not a legally recognized UNION of you and them (or me and mine). Same-sex marriage would be a legally recognized union of two people. The relationship that is marriage is of a quality different from other relationships, as loving and committed as those others may be.

I appreciate Professor Berg’s answer, but as he notes the Catholic understanding is not the secular one, and the significance of consummation is vanishing.

We live in a nation where Catholics are a distinct minority, so secular marriage is what matters most. A Catholic legal theory constructed in isolation from reality has no value.

sean s.

Posted by: sean samis | May 10, 2013 12:52:31 PM

Catholics who follow official doctrine are truly a distinct minority.

Changing views of sex and marriage only underline the point, including allowance of fornication, cohabitation, contraceptive use and easy divorce etc. It seems to me that the Church has in effect to some degree admitted a form of defeat on such questions (not totally, of course), drawing new lines in the sand, but they help show why singling out same sex couples just is not rational.

The reference to "love" is a somewhat common trope. It is common for someone to say they are marrying the person they love. This is not usually misunderstood when a different sex partner is involved. It is a shorthand of "romantic love" or whatever. Not that love is necessary for secular marriage. Historically, it often did not have much of an importance in marriage at all. Any reference to "love" even in religious ceremonies there was in the context of social understandings too. Such things have changed over time. Marriage is not fixed.

Posted by: Joe | May 10, 2013 1:18:59 PM

Sean, in order to be married, one must be able to live in relationship as husband and wife.

Posted by: Nancy | May 10, 2013 1:32:07 PM

Our call to Holiness, is a call to Love, thus The Catholic Church has always taught that all Marriages should be Holy and ordered to authentic Love.

Posted by: Nancy | May 10, 2013 1:34:51 PM

Nancy,

You do realize don’t you that legal recognition of same-sex marriage affects many people who are not Catholics? In fact, by some definitions, the ONLY people it affects are “not Catholic”! This is matters because Catholics cannot impose their beliefs (however sincere) on non-Catholics. You do understand this problem don’t you?

I realize this site is devoted to Catholic Legal Theory, but a Catholic legal theory constructed in isolation from reality has no value to the Church or those outside the Church. The reality is that Catholics live in a nation made up principally of non-Catholics, people who have the same God-given rights as Catholics and who increasingly find no problems with same-sex marriage.

So Catholics must realize that in this country, in order to be married one must only be able to live in a faithful relationship as a SPOUSE. “Husband” and “wife” are terms that would apply only to some marriages.

Finally, it is the belief of same-sex couples that their marriage is Holy and ordered to authentic love. You and perhaps the whole of Catholicism may disagree, but your beliefs are irrelevant to their marriage.

Legal recognition of same-sex marriage will not change your life, Nancy, unless you choose to let it. The Sun will still rise and you will still love your God and your children. Nothing else matters.

sean s.

Posted by: sean samis | May 10, 2013 2:58:27 PM

"It is, however, a self evident truth that Marriage does exist."

In what sense can marriage be said to exist?

Posted by: David | May 10, 2013 3:08:52 PM

Sean, I would heartily endorse your statement that "[l]egal recognition of same-sex marriage will not change your life, Nancy, unless you choose to let it"--except for the remarkably narrow conception of religious liberty rights you express for traditionalist employers (maybe including religious organizations). You appear to see this as entirely a matter of the religious person "imposing" on others--no matter what alternatives the employee or client might have. And your recommendation, at least re abortion or contraception, is simply that if the employer is offended, "they need to get out of the business" (which with the HHS mandate means "shut down," because there is no line of work outside the mandate). I assume you'd say the same thing to the wedding photographer (why not call that "imposing on others" too, no matter how easy it is to find a different photographer)? And it seems likely you would say the same thing to religious schools and charities (after all, they're employers too; why are't they likewise "imposing on" their employees?).

It's not possible to take those positions and say SSM recognition won't affect anyone else's life.

I argue to those doggedly opposing same-sex marriage that they are driving the pro-SSM side to treat this a zero-sum game. But can't you see that the hostility to accommodation that you and others express does exactly the same thing--i.e. drives traditionalists to conclude there is no alternative but to block SSM altogether? The stakes are greatly reduced--and SSM may pass in some more borderline states--when there are meaningful accommodations. (Minnesota got part of the way, and it helped secure passage.)

Posted by: Tom Berg | May 10, 2013 3:49:13 PM

Nancy,

The following is a statement from Peter, Paul, & Mary to the National Organization for Marriage:

**********
We would like to respectfully request that you refrain from playing the Peter, Paul, & Mary recorded version of Woody Guthrie’s “This Land Is Your Land” at your public rallies. We respect your right to hold and advocate for any position you wish, but the philosophy of the “National Organization for Marriage” is directly contrary to the advocacy position Peter, Paul, & Mary have held for decades, and so we do not want our recording of this song played at your rallies.

We strongly support the rights of all gays and lesbian to enjoy the rights and rituals of marriage that are enjoyed by their straight counterparts, and consider the abridgement of this right contrary to the sense of equal protection and fairness inherent in, and implied by, the law of the Constitution of the United States.
**********

I am sure they would say the same about "The Wedding Song (There Is Love)" as well.

Posted by: David | May 10, 2013 4:25:02 PM

David, the statement from Peter, Paul, and Mary, does not change the essence of The Wedding Song.

Posted by: Nancy | May 10, 2013 5:07:22 PM

Sean's argument that no "special" exemptions should be granted that do not apply as well to race or gender discrimination (in fact, denying SSM is a form of gender discrimination).

It is not a question of "traditionalists" -- there apparently is something specific about sexual orientation that warrants rules that are weaker. Why is it "remarkable" to treat race, sex and sexual orientation the same? Why are same sex couples, as compared to a range of couples who are contrary to "traditional" practices, under a special obligation here?

With respect to Rick Garnett, no convincing answer was provided, when me, sean and David raised the point. We were said to reject all religious accommodations, but each one of us pointed out that is not true. We did support an evenhanded rule here. Religion isn't used to justify not serving interracial couples, but same sex couples deserve somewhat less. Why? It is not like everyone supports interracial couples or those of different tribes or whatever.

There are differences here. If you are talking about ministerial employees, there is a clear right to religious exercise there. A religion can "impose" on nuns or whatnot to follow the rules. I don't see any evidence sean thinks, e.g., the Catholic Church violates equal protection by not allowing female priests. But, it's different when you serve the public at large. At least, when race or sex is generally at issue. Sexual orientation? Suddenly not.

I really don't think the blocking of SSM is going to fall on not having special rules for discriminating against same sex couples specifically. What other groups will have to take one for the team, so to speak?

Posted by: Joe | May 10, 2013 5:29:27 PM

Sean's argument that no "special" exemptions should be granted that do not apply as well to race or gender discrimination (in fact, denying SSM is a form of gender discrimination).

It is not a question of "traditionalists" -- there apparently is something specific about sexual orientation that warrants rules that are weaker. Why is it "remarkable" to treat race, sex and sexual orientation the same? Why are same sex couples, as compared to a range of couples who are contrary to "traditional" practices, under a special obligation here?

With respect to Rick Garnett, no convincing answer was provided, when me, sean and David raised the point. We were said to reject all religious accommodations, but each one of us pointed out that is not true. We did support an evenhanded rule here. Religion isn't used to justify not serving interracial couples, but same sex couples deserve somewhat less. Why? It is not like everyone supports interracial couples or those of different tribes or whatever.

There are differences here. If you are talking about ministerial employees, there is a clear right to religious exercise there. A religion can "impose" on nuns or whatnot to follow the rules. I don't see any evidence sean thinks, e.g., the Catholic Church violates equal protection by not allowing female priests. But, it's different when you serve the public at large. At least, when race or sex is generally at issue. Sexual orientation? Suddenly not.

I really don't think the blocking of SSM is going to fall on not having special rules for discriminating against same sex couples specifically. What other groups will have to take one for the team, so to speak?

Posted by: Joe | May 10, 2013 5:29:27 PM

We are all members of the Human Race, thus it is not unjust, nor is it an act of hostility to refuse to condone and affirm same-sex sexual acts.

Posted by: Nancy | May 10, 2013 6:55:59 PM

Joe:

Why do you bring up race? That's not the issue here. Instead of trying to find an analogy of bad behavior without actually wrestling with the question at hand, wrestle with the question at hand.

The question is whether it is permissible for the state to coerce citizens to cooperate with understandings of marriage over which reasonable citizens disagree. See, that's not tough. If liberalism can't handle that difference, and accommodate it in its laws, then liberalism was just a ruse for tyranny. Prove me wrong and act like a liberal!

Posted by: Thomas Aquinas | May 12, 2013 10:19:01 AM

Thomas Aquinas:

You say, "The question is whether it is permissible for the state to coerce citizens to cooperate with understandings of marriage over which reasonable citizens disagree."

The answer is, "Sure." The state already does so. To bring back an idea that has been repeated again and again, what if Catholic Charities or some other Catholic organization decided they weren't going to recognize a second civil marriage subsequent to civil divorces? Do you think that would not be regarded by the state as discrimination?

Posted by: David | May 13, 2013 12:21:39 AM

David, the question is, is it permissible for the Federal Government or any State to coerce citizens to condone and affirm same-sex sexual acts, and thus same-sex sexual relationships, when men and women are designed in such a way that it is impossible to engage in same-sex sexual acts without demeaning the inherent personal and relational Dignity of the Human Person?

Posted by: Nancy | May 13, 2013 9:54:40 AM

Tom, you wrote that you think I “appear to see this as entirely a matter of the religious person ‘imposing’ on others”. Tom, everyone in this controversy is a “religious person”; everyone discussing this topic has scruples regarding religion. The same-sex couple are “religious persons” as much as the photographer or the cake-maker.

I have no hostility to accommodation with those who oppose same-sex marriage, they are entitled to reasonable accommodation. It just so happens that reasonable accommodations in this matter very, very closely resemble reasonable accommodations for those who wish to discriminate on the basis of race or gender. If greater accommodations are “reasonable” then they would have REASONS to justify them. If there are such reasons, they have escaped presentation so far, even though several of us have asked for them. Perhaps you can summarize them here.

For a same-sex couple, it might be easy enough to find another wedding photographer; it would have been easy enough for Rosa Parks to move to another seat. Those kids in Topeka and Little Rock could have just gone to different schools. Thank God they were stubborn, right?

The extraordinary accommodations you seek may be the price paid to get same-sex marriage recognized in some states, but there is no reason to think that is the last word. Racial segregationists wanted “robust accommodations” too.

I know you will object to the parallels I draw between opposition to marital equality and opposition to racial equality. But the parallels are rational; gender, race and sexual orientation are all biologically determined traits which harm no third persons and which have been subject to religiously based oppression. The religious oppression of gender, race and sexual orientation consists or consisted of PROHIBITIONS ON **CONDUCT**.

- - - - - -

As for the individual mandate, that is an entirely different matter. You are obviously offended that I suggest that objecting employers get out of the business; are you as offended by glib comments that employees should just work elsewhere? Why is one suggestion offensive if the other is not? Why is one zero-sum but the other is not?

sean s.

Posted by: sean samis | May 13, 2013 10:33:38 AM

Sean, being male or female is biologically determined, the desire to engage in demeaning acts, including demeaning sexual acts is not, which is why it is not unjust discrimination to discriminate between acts that are respectful of the inherent Dignity of the Human Person, and acts that demean the inherent Dignity of the Human person and can thus never be Loving acts.

Posted by: Nancy | May 13, 2013 11:12:02 AM

Thomas Aquinas;

We keep going back to race because gender, race, and sexual orientation are so similar that discrimination against any is equally unjust.

Gender, race and sexual orientation are all biologically determined traits which harm no third persons and which have been subject to religiously based oppression. Religiously based oppression of gender, race and sexual orientation all consisted of prohibitions on conduct.

Discrimination has always been about limiting “bad behavior”; whether voting or property ownership, intermarriage or marriage in general, defiance of males or whites or other “betters”. Jim Crow was about “bad behavior” just like laws against same-sex marriage are now.

I realize these parallels are not helpful to you, and may even be offensive. The problem is what to make of unhelpful, offensive facts. Do we deny what is true so as to make people comfortable with their errors?

sean s.

Posted by: sean samis | May 13, 2013 11:24:24 AM

Nancy,

Sexual orientation is biologically determined. It is not a choice, and acting on sexual impulses is natural. Same-sex acts are no more inherently harmful to others than different-sex acts are. This is why discrimination on the basis of sexual orientation is unjust.

sean s.

Posted by: sean samis | May 13, 2013 11:27:38 AM

Sean and Joe,

You analogize sexual orientation discrimiation to racial discrimination, and I think it's a helpful analogy. Here's a possible response; let me know what you think.

I don't know if sexual orientation discrimination and racial discrimination are different in principle, but they do have a very different history. The history of race is the history of our country. We had a system of race-based slavery that took a century before it ended in a civil war; the brutal system of Jim Crow that took its place took almost a century more to undo.

Gays and lesbians too have been repressed by the state; in my mind, the greatest injustice has been how it has been legally impossible for them to adopt children or raise their own biological children with their chosen partners. But our society is moving fast on the issue of sexual orientation; when I did some hasty back-of-the-envelope regressions, I concluded that Mississippi would be the last state to adopt same-sex marriage sometime around 2025. Now gay and lesbians shouldn't have to wait; I hope the Supreme Court gives them the right to marry now. But the swiftness with which the gay-rights movement has made progress suggests that we maybe need not go as far in suppressing private religious-motiviated acts of discrimination in the context of sexual orientation as compared to race.

The usual response to this type of argument is to say something like, "This is asinine; this gets it exactly backward; it holds the success of the gay-rights movement against it." But my starting premise (and a good one, I think) is that to interfere with religion, the government should have a good reason. Don't these facts go to the strength of the government's reason? I think so. So because of the success (justified success and much-needed success in my view) of the gay-rights movement, the need to apply civil rights laws vigorously to dissenting religious groups seems less to me in the context of sexual orientation.

Posted by: Anon | May 13, 2013 11:33:31 AM

Anon;

You make an interesting case, but overlook a few critical facts.

First, regardless of how quickly things are moving, rights are not supposed to be vulnerable to an oppressive majority. So, as a matter of principle, compromising on individual rights now endangers all rights for everyone forever.

Second, legal recognition of same-sex marriage does not “interfere with religion”; it protects religious freedom. It is simply false to say that the only people with sincere religious beliefs are those who oppose same-sex marriage.

Third, the concept of momentum in politics or sociology is a big, Big mistake.

Consider the Equal Rights Amendment. It was passed by Congress in 1972 and was quickly ratified by 22 States (of the necessary 38). In 1973, only 8 States ratified the ERA, three more in 1974, and one in 1975, bringing it to 34 of the necessary 38. It took 2 more years to get the 35th ratification. Some states actually rescinded their ratification. Congress extended the 1979 deadline, but the ERA died in 1982.

Between the Emancipation Proclamation and the end of the Reconstruction there was enormous progress in racial equality. And then the Reconstruction ended and the situation rolled back. Only the fact of the 13th Amendment prevented the restoration of slavery.

Today’s rapid advances are not secure until they are in fact secure. So, no. A wise person would not celebrate yet, or even pause.

sean s.

Posted by: sean samis | May 13, 2013 11:55:04 AM

Regardless of ancestry, every son or daughter of a human person is a member of the Human Race and thus has an inherent Right to be treated with Dignity and Respect. Condoning or affirming same-sex sexual relationships and thus same-sex sexual acts, violates the inherent Right of all persons to be treated with Dignity and Respect.

Posted by: Nancy | May 13, 2013 12:22:29 PM

There is nothing that is oppressive about authentic Love that desires only that which is Good for one's beloved. Only The Truth of Love can set us free. Let us Pray, that through The Immaculate Heart of Mary, we will have the desire to Mirror Justice and reflect The Truth of Love.

Posted by: Nancy | May 13, 2013 12:37:43 PM

Nancy;

Your first sentence is exactly correct. Your second sentence violates the spirit of your first sentence in every possible way.

sean s.

Posted by: sean samis | May 13, 2013 12:39:10 PM

Sean, how does my second sentence violate the spirit of my first sentence?

Posted by: Nancy | May 13, 2013 1:17:38 PM

Nancy,

I was referring to your comment time-stamped at 12:22:29 PM. Another comment of yours came in between that one and my comment on the first one.

In your earlier comment, your first sentence (“Regardless of ancestry,...”) speaks to the dignity and inherent rights of every person. Your second sentence (“Condoning or affirming...”) debases the inherent rights of persons to direct their own lives. You cannot respect the dignity of people while treating them as foolish children; between those two you have to make a choice: respect or paternalism.

Your second comment time-stamped at 12:37:43 Pm begins “There is nothing that is oppressive about authentic Love that desires only that which is Good for one's beloved. ...” True enough, but to impose your idea of what is good on others is not authentic love and is oppressive.

sean s.

Posted by: sean samis | May 13, 2013 1:41:58 PM

Sean, there is only One Word of God, thus there is only One Truth of Love. Truth is not a matter of opinion.

Posted by: Nancy | May 13, 2013 1:57:31 PM

Nancy, what is “Religious Truth” is very much a matter of opinion. Otherwise religious liberty is nonsense.

Do you deny that religious liberty is a gift from God?

sean s.

Posted by: sean samis | May 13, 2013 2:02:06 PM

Thanks to Prof. Berg for noting that SSM recognition does force others to honor that recognition, with the threat of loss of livelihood and civil penalties, unless religious liberty provisions state otherwise. I agree that unwillingness to accommodate forces people into all-or-nothing camps, and drives away many who are otherwise open to change. Many of us are in that boat, especially many Catholics, I bet.

The common comparison to race/gender, while not irrelevant, is not as straightforward as some commenters say. The main reason is that sexual orientation is also linked to behavior, not just status. What if a photographer refused to photograph certain activities, without regard to orientation, such as refusing to photo circus acts because she believes those are animal abuse? What if a caterer does not wish to cater a meeting of the KKK? What if a gay caterer does not want to serve the Westboro Baptist Church? I'd support a more robust protection of refusal to do business, even without a religious liberty basis, simply on any philosophical basis. That may not extend to statuses such as race and gender, but would extend to the activity of a gay wedding. It would not allow someone to turn away a gay high school student for yearbook pictures, because nothing about those pictures implicates any objectionable activity.

I suspect, though, that we will not move in that direction. Although part of the pro-SSM forces are willing to live with compromises, I fear that the majority does not want any caterer to have the right to say no. That shows, I suspect, that their goal is not the mere elimination of "government discrimination," but is the reshaping of society to chase out the "wrong" opinions. Where does that leave the Church, and where does that leave "tolerant" America?

Posted by: Joe Reader | May 13, 2013 2:34:51 PM

Joe Reader,

You wrote that “The common comparison to race/gender, while not irrelevant, is not as straightforward as some commenters say. The main reason is that sexual orientation is also linked to behavior, not just status.”

The problem Joe is that racial segregation was very much linked to behaviors; it was linked to things like voting, education, property ownership, racial mixing, economic and political competition. “Jim Crow” was intended to regulate behaviors; that was its primary purpose. Regulating the behaviors of same-sex couples is quite similar; the comparison to racism is very much on point.

You wrote, “I'd support a more robust protection of refusal to do business, even without a religious liberty basis, simply on any philosophical basis. That may not extend to statuses such as race and gender...”.

Ok, but why not extend these exemptions to gender and race? Not that I want them to, but what makes gender and race so different from sexual orientation? Because of conduct? A bigot can make a conduct-related claim against gender or race too; that women should not be out in the market place but home with their children; that blacks should not mix socially with whites. These are not wild inventions, they are actual religious claims that have been made and could still be made against the conduct of women or racial minorities.

I am quite willing to live with compromises, but all I see is a desire to take, not to give. Opponents of same-sex marriage want same-sex couples to give up the right to be treated with basic dignity, in exchange opponents of same-sex marriage are giving up...nothing but the right to mistreat others. “Compromises” like that are a perversion of the word.

sean s.

Posted by: sean samis | May 13, 2013 2:54:25 PM

Joe Reader,

Would it be simply same-sex weddings you want business to be able to refuse to provide goods and services for? What about celebrations of same-sex-wedding anniversaries? May a printer refuse to print cards announcing the birth of a child of a same-sex couple? We had a notorious case a few years ago of a Catholic school declining to let two children continue in their school because the children's parents were lesbians. Is that option going to be open to all private schools—to discriminate against children because they don't recognize the legitimacy of their parents' relationship?

I have no problem at all building exemptions into the law for legitimate religious organizations, but it seems to me it is simply going too far to give to individuals and small businesses the right to refuse to provide goods and services to couples on the grounds that they don't recognize their marriage. If the state sees fit to permit same-sex marriage, and it further sees fit to join particular couples in same-sex marriage, why should it say, in effect, we have joined them in marriage but if you come up with a religious reason, you can "annul" the marriage?

Why should the state join two people in marriage and not stand behind the legitimacy and legality of those people's marriage?

I'd like to know—and I repeat this for the umpteenth time—why Catholics seem to have no problem with those who are divorced and "remarried" (and therefore in their eyes living in adultery, producing children in an adulterous union, etc.), but want to be permitted not to sell flowers or a cake to a same-sex couple? It strikes me that we're dealing here not with moral disapproval, but with people who are creeped out by sexual relationships between people of the same gender.

You say: "Although part of the pro-SSM forces are willing to live with compromises, I fear that the majority does not want any caterer to have the right to say no."

Caterers cook food. They do not join people in matrimony. In what way are caterers responsible for the marriages of the people whose weddings they cater? If caterers can refuse to cater same-sex weddings, can the local grocery store refuse to sell a same-sex couple the food to serve at their wedding. Can the local grocery store simply refuse to sell food to a same-sex couple at all? Why should a mom & pop grocery store play *any* role at all in the lives of a same-sex married couple and the lives of their children? Can a Catholic hospital refuse to deliver the baby of a lesbian mother? Why should anyone who disapproves of same-sex couples having children be a part of it in any way?

Posted by: David | May 13, 2013 3:39:50 PM

Sean, since it is true that, regardless of ancestry, men and women are designed in such a way that a man or woman cannot engage in same-sex sexual acts without demeaning the inherent Dignity of the human person, there is no reason for any State to condone or affirm same-sex sexual acts and thus same-sex sexual relationships.

Posted by: Nancy | May 13, 2013 3:55:33 PM

Nancy,

The truth is that what you write is just your opinion. There is no reason for the State to intrude on the private, harmless sexual intimacies of same-sex couples.

sean s.

Posted by: sean samis | May 13, 2013 4:08:32 PM

Sean, David, anyone I missed,

I'll try to respond later to your questions, but if I may, could I ask you what you think about the questions I already laid out? Should a gay printer have to print anti-gay brochures? Should a gay photographer have to accept a request to photograph an antigay rally for that group's newsletter?

I recognize that in those case, there might not be a common category in an anti-discrimination law, but religion can always apply. Perhaps a specifically Baptist of Catholic group is having a "save marriage" event and wants a gay caterer, printer, photographer, etc. Or perhaps a city passes a broader "businesses must accept all customers" law, not limited to protected classes of any type.

What is your view on that? Force the gay caterer to serve his opponents?

Posted by: Joe Reader | May 13, 2013 5:41:25 PM

Opponents? A friend is one who desires you be treated at all times in public as well as in private, with Dignity and Respect.


Posted by: Nancy | May 13, 2013 6:06:28 PM

Joe Reader,

I think it is unjust discrimination for any for-profit business or any other entity that is classified as a public accommodation to refuse goods or services for a same-sex wedding. Not every state has anti-discrimination laws that protect gay people. I think only about twenty do, and I wish there were thirty more, but in states where there are no anti-discrimination laws protecting gay people, then caterers, florists, photographers, and others can refuse to provide goods or services for same-sex weddings or other gay events. Gay-owned businesses should not be exempt from discrimination laws based on race, color, creed, religion, and so on, so it would be unlawful, in my opinion, for a gay caterer or photographer or printer to discriminate on the basis of religion. I am not at all sure, however, that it would be discrimination on the basis of religion to refuse to materially aid a religious group in the preparation of an anti-gay marriage campaign.

It seems to me that when same-sex marriage is legal, it is anti-gay discrimination to refuse to provide goods or service for a same-sex wedding. It does not seem to me that it would be anti-Catholic discrimination to, say, refuse to cater a Catholic-sponsored anti-same-sex-marriage fund-raising benefit, because the objection is not that the people are Catholic. It's that they are raising money for political purposes to oppose same-sex marriage. If a gay caterer would have no objections to catering a Catholic fund-raising benefit for, say, refurbishing the church or school, or providing Catholic scholarships, but the gay caterer would not help in an anti-gay campaign, then I don't think that would be anti-religious discrimination.

I *do* think it would be unjust discrimination for a gay-operated public accommodation to refuse to provide goods and services for a Catholic organization on the rationale that the Catholic Church opposes same-sex marriage. Gay people are not exempt from anti-discrimination laws even in states where they are themselves protected by anti-discrimination laws.

Posted by: David | May 13, 2013 7:35:30 PM

The difference between a man or woman with a same-sex sexual attraction and a man or woman who does not have a same-sex sexual attraction, is a same-sex sexual attraction, not a difference in gender.

Posted by: Nancy | May 13, 2013 10:47:50 PM

Joe Reader,

David and I come at this from different directions, but I think our conclusions are pretty much the same.

It is and has always been my position that whatever current law says about gender or racial discrimination should apply to sexual-orientation discrimination unless a good reason is demonstrated to do otherwise. In your hypos I see no good reason to diverge from the existing scheme of law

Under current law, could a black printer refuse to print racist literature? Whatever rule governs that should also govern in the case of a gay caterer and homophobic brochures.

Under current law, could a black photographer refuse to photograph a racist rally for a racist newsletter? Whatever rule governs that should also govern in the case of a gay photographer and a homophobic rally and newsletter.

sean s.

Posted by: sean samis | May 14, 2013 8:45:16 AM

Nancy, you wrote to Joe Reader: “Opponents? A friend is one who desires you be treated at all times in public as well as in private, with Dignity and Respect.”

Like Joe Reader said, Nancy: opponents. Someone who wants to control your private life and limit your rights does not “desire you be treated at all times in public as well as in private, with Dignity and Respect.”

Opponents of same-sex marriage oppose treating gay and lesbian persons with dignity and respect.

sean s.

Posted by: sean samis | May 14, 2013 8:45:53 AM

Sean, how do same-sex sexual acts respect the inherent Dignity of the human person?

Posted by: Nancy | May 14, 2013 11:18:10 AM

Nancy,

I don’t think any “act” respects anything, respect is something shown by one person to another. To respect someone, you have to respect their right to make personal decisions and respect their right to act in accord with how God or nature created them.

sean s.

Posted by: sean samis | May 14, 2013 11:35:05 AM

Men and women have been created in such a way that it is physically impossible to engage in same-sex sexual acts without demeaning the inherent Dignity of those persons engaging in same-sex sexual acts. Let us Pray that those who desire that every human person be treated with Dignity and Respect in public as well as in private, are not afraid to speak the truth in regards to the demeaning nature of same-sex sexual acts.

Posted by: Nancy | May 14, 2013 11:58:59 AM

Nancy,

Let us hope those who desire that every person be treated with dignity and respect are unafraid to speak the truth: same-sex acts are not inherently demeaning, no more than different-sex acts. They are just as natural and beneficial for gay and lesbian persons as coitus is for heterosexual persons.

sean s.

Posted by: sean samis | May 14, 2013 12:09:02 PM

Nancy,

A question: does God love sinners less than he loves others? Does God love active homosexuals less than he loves celibate homosexuals?

sean s.

Posted by: sean samis | May 14, 2013 12:27:03 PM

Sean, your comments might bear some resemblance to reality if I weren't arguing, in the Supreme Court and elsewhere, that same-sex marriage should be recognized now--not off in the future. My argument is that although sexual orientation shares a number of features with race, there are also historical differences and a good-faith disagreement over one aspect of the analogy: whether sexual difference bears some relevance to the nature of marriage (a good-faith disagreement that does not exist with respect to whether race has any relevance to it). One can affirm that the traditional view is mistaken and unfair to gays and they must receive equal treatment from government, public accommodations, etc., without saying that government should coerce and penalize every religious organization that acts on the basis of the traditional view that until very recently was the dominant position in virtually every human society, ever.

Your position, as I see it, moves immediately from "they are wrong" to "coerce them." That is what traditionalists, when they had the power, did to gays. Under your position, people who have been oppressed will quickly become oppressors. But you say that offering any of these distinctions, even while supporting gay marriage, is the same as kicking Rosa Parks to the back of the bus. I don't see that any conversation going forward will be very fruitful.

I don't like Bill O'Reilly, but I'll quote him: You can have the last word.

Posted by: Tom Berg | May 14, 2013 12:29:43 PM

OK, Tom; I’ll take the last word then. If “robust exemptions” are given for homophobic discrimination, then laws that recognize same-sex marriage or “protect” against homophobic discrimination will be empty gestures. An empty gesture enacted right away is still an empty gesture. Formal equality and de facto discrimination is not a satisfactory solution to racial or gender discrimination, why would it be a satisfactory solution to homophobic discrimination?

Tom, there may be a “good faith” disagreement about the relationship of same-sex marriage to “traditional marriage” but there was at one time a “good faith” disagreement about whether racial mixing was harmful. Some will say (In good faith, I’m sure) that there still is a “good faith” disagreement about racial equality There certainly still is a “good faith” disagreement about the proper role of women in society. Any disagreement can be characterized as a “good faith disagreement”.

I take it that you believe as long as anyone maintains a “good faith” disagreement, we must allow them to harm others. A “good-faith” disagreement does not justify racial discrimination, why should it justify homophobic discrimination?

My position is that homophobic discrimination deserves the same exemptions as racial discrimination. No less, no more. If coercion to end racism was justified, coercion to end homophobia is justified. If the latter is not justified, then the former must be wrong too.

Your comments on historical difference makes what appears to be your point: you appear to support formal equality, but for actual equality, gays and lesbians must be required to suffer longer. How much longer seems undetermined.

I’m sorry if I seem to be pushing you too hard on this, but your argument is incomprehensible to me. How long does an evil have to exist to become an evil? The long history of slavery and racism compelled us to address that issue first, and we did. The long history of gender discrimination compelled us to address that quickly and we have been. How long do we need to wait to address other known evils? What is the point of waiting?

sean s.

Posted by: sean samis | May 14, 2013 1:05:17 PM

Sean, the question is, do you Love The True God, The God of our Salvation, Who desires that we overcome our disordered inclinations so that we are not led into temptation, but rather, sin no more? Racial discrimination denies the humanity, the personhood, of a son or daughter of a human person. Refusing to condone and affirm same-sex sexual acts which demean the humanity, the personhood, of a son or daughter of a human person, affirms the humanity, the personhood, of that son or daughter of a human person.

Posted by: Nancy | May 14, 2013 1:36:00 PM

Nancy,

The question is does God love sinners less than he loves others? Does God love active homosexuals less than he loves celibate homosexuals?

Your or my love of God is not the question; the question is whether God loves gay or lesbian persons, and whether we do too.

sean s.

Posted by: sean samis | May 14, 2013 2:21:58 PM

Sean, God desires Salvation for all His Children. Do not let your heart be hardened like a pillar of salt.

Posted by: Nancy | May 14, 2013 5:52:54 PM

"Does God love active homosexuals less than he loves celibate homosexuals?"

Of course not. I think the point is that celibate homosexuals love God more, maturely.

Posted by: Mark | May 14, 2013 8:14:59 PM

God would never refer to any of His sons or daughters as objects of sexual desire or orientation, as that would be in direct violation of His own Commandment regarding lust and the sin of adultery.

Posted by: Nancy | May 14, 2013 11:42:04 PM

Nancy (and Mark?),

If God loves sinners and active homosexuals as much as he loves anyone, then their same-sex acts cannot be demeaning; they do not demean them in God’s eyes; who else’s would matter?

sean s.

Posted by: sean samis | May 15, 2013 9:04:46 AM

Sean, God Loves the sinner, but does not Love sin, which is why we, who are sinners, are in need of a Savior, and why the only sin that is not forgivable, is the sin against The Holy Spirit. Do not let your hearts be hardened like a pillar of salt, for at the End of The Day, through God's Grace and Mercy, only Love will remain.

Posted by: Nancy | May 15, 2013 10:48:19 AM

Nancy,

I have never been troubled by the idea that God loves the sinner but not the sin. My point is that you claim that same-sex acts are inherently demeaning but that cannot be.

“Demeaning” is a term that means to “cause a severe loss in the dignity of and respect for someone/something”. If God loves the sinner regardless, then their sin does not demean them in God’s eyes. Nature does not demean anything; nature just does what it does. Nature has no opinions.

So how could same-sex acts be “demeaning”?

The Truth is that you think same-sex acts are “demeaning” because they put YOU off. They cause YOU to lose respect for the participants.

Well, OK, but that’s on you. You think these acts demean. Others (like myself) do not predicate their respect for others on their sexual purity.

So at least be clear: same-sex acts demean in your opinion, but that opinion does not apply to God or nature or everyone else. It’s just you and others like you, a thankfully shrinking minority.

sean s.

Posted by: sean samis | May 15, 2013 12:38:55 PM

Sean, same-sex sexual acts are demeaning because God created us male and female. God creates, Nature is God's design, thus same-sex sexual acts are a violation of The Word of God, and of God's Design, Nature.

Posted by: Nancy | May 15, 2013 1:38:03 PM

Nancy,

I understand that YOU find same-sex acts demeaning, but that is just your opinion.

Saying that same-sex acts “violate” is just another, long, convoluted way of saying they are sins. Pah-tay-toe / pah-tah-toe.

That same-sex acts might be sins would not make them demeaning to God if God loves sinners just as much anyway. Who after all, has no sins?

If God still loves the sinner, the sin does not demean them in God’s eyes. If God can maintain his love and respect for others in spite of their sins, why can’t you and I? Why disrespect others because of their sins, are we not all sinners?

sean s.

Posted by: sean samis | May 15, 2013 1:52:51 PM

Should say "Saying that same-sex acts “violate” ((whatever)) is just another, long..."

sean s.

Posted by: sean samis | May 15, 2013 1:53:58 PM

Redo:

Nancy,

I understand that YOU find same-sex acts demeaning, but that is just your opinion.

Saying that same-sex acts “violate” ((whatever)) is just another, long, convoluted way of saying they are sins. Pah-tay-toe / pah-tah-toe.

That same-sex acts might be sins would not make them demeaning to God if God loves sinners just as much anyway. Who after all, has no sins?

If God still loves the sinner, the sin does not demean them in God’s eyes. If God can maintain his love and respect for others in spite of their sins, why can’t you and I? Why disrespect others because of their sins, are we not all sinners?

sean s.

Posted by: sean samis | May 15, 2013 1:55:06 PM

http://www.scborromeo.org/ccc/p3s1c1a6.htm

Sean, we are all sinners, but this does not change the fact that Love and Respect is desiring Salvation for ourselves as well as our beloved. All that is Good is ordered to Love.

Posted by: Nancy | May 17, 2013 8:58:43 AM

Nancy,

That’s all nice, but it still means that same-sex acts between consenting adults are not demeaning.

Some people (who only desire our salvation) want us to stop eating pork. That’s fine, and ignoring their desire is find too. Eating pork is not demeaning, no matter how strongly others disapprove. Likewise for same-sex acts.

sean s.

Posted by: sean samis | May 17, 2013 9:28:16 AM