Tuesday, April 23, 2013
"Another Vatican voice backs civil unions for same-sex couples"
By John Allen
Another veteran Vatican figure has signaled openness to civil recognition of same-sex unions in the wake of similar comments in early February from the Vatican's top official on the family. It's a position also once reportedly seen with favor by the future pope while he was still Cardinal Jorge Mario Bergoglio in Buenos Aires, Argentina.
The latest expression of support for civil recognition as an alternative to gay marriage comes from Archbishop Piero Marini, who served for 18 years as Pope John Paul II's liturgical master of ceremonies.
"There are many couples that suffer because their civil rights aren't recognized," Marini said.
Marini, now 71, is currently the president of the Pontifical Committee for International Eucharistic Congresses. He spoke in an interview with the newspaper La Nación in Costa Rica, where the local church wrapped up a Eucharistic congress Sunday.
[Read the rest here.]
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/04/another-vatican-voice-backs-civil-unions-for-same-sex-couples.html
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I just purchased the book, "Pope Francis", on "Heaven and Earth", where Jorge Mario Bergoglio and Rabbi Abraham Skorka share their thoughts on "religion, reason, and the challenges the world faces in the twenty-first century". If you read the book, you will find this statement from Pope Francis on page 117 in regards to same-sex unions:
"If there is a union of a private nature, there is neither a third party, nor is society affected. Now, if the union is given the category of marriage and they are given adoption rights, there could be children affected. Every person needs a male father and female mother that can help them shape their identity." - Jorge Mario Bergoglio
Posted by: Nancy | Apr 23, 2013 6:01:12 PM
This kind of "signs of the times" post calls out for substantive commentary by the poster. See GS 4 ("[T]he Church has always had the duty of scrutinizing the signs of the times and of interpreting them in the light of the Gospel.").
Posted by: Kevin C. Walsh | Apr 23, 2013 9:32:11 PM
Dear Kevin,
I--the poster--thought that the news item was interesting, and that it would be interesting to those MOJ readers who are actively thinking about the issue.
I present and defend, at length, my own position in my new book, Human Rights in the Constitutional Law of the United States, which will be published in September (Cambridge University Press).
Michael
Posted by: Michael Perry | Apr 24, 2013 8:54:57 AM
That's promising. The Catholic Church supported Griswold v. Connecticut, even though they oppose the morality of using contraceptives as broadly as protected there and support of civil unions (btw marriage recognized by the state is just that, a form of civil union) even if the Church itself opposes them in certain respects is a similar respect of the religious liberty of the people at large.
Posted by: Joe | Apr 24, 2013 10:28:12 AM
Professor Perry, you have stated that denying access to civil marriage to same-sex couples is a violation of relevant moral norms. That which is moral is grounded in respect for the personal and relational inherent Dignity of the human person. Since it is true that men and women are designed in such a way that a couple cannot engage in same-sex sexual acts without violating their personal and relational inherent Dignity, why do you support same sex sexual relationships rather than Loving friendships?
Posted by: Nancy | Apr 24, 2013 10:52:22 AM
Did the Catholic Church really support the result in Griswold? I thought the opposite was true.
E.g., http://religionandpolitics.org/2012/09/25/connecticut-a-blogger-revisits-the-yale-athletic-fields/
Posted by: WmBrennan | Apr 24, 2013 10:54:33 AM
WmBrennan,
I am not quite sure what it means to say the Catholic Church did or did not support Griswold. Who gets to speak for the Catholic Church when it comes to a Supreme Court decision?
Posted by: David | Apr 24, 2013 11:18:58 AM
The Catholic Church teaches that our inherent Right to be treated with Dignity and Respect exists whether we are in public, or in private.
Posted by: Nancy | Apr 24, 2013 11:43:14 AM
If a couple, out of love for each other and profound respect for the institution of marriage, wants to get married, why should the Catholic Church care? No one is asking the Church to perform the ceremony or even to treat the couple as married. How can it possibly affect the Church in any way?
Posted by: Ellen Wertheimer | Apr 24, 2013 11:46:23 AM
Nancy,
I cannot speak for Professor Perry, but if “That which is moral is grounded in respect for the personal and relational inherent Dignity of the human person” then your persistent disrespect for same-sex couples is not moral even by your own standards.
Regarding “a couple cannot engage in same-sex sexual acts without violating their personal and relational inherent Dignity”; that is your opinion, but your opinion is not decisive in the lives of others. To insist that it is runs contrary to your own moral rule.
Even someone who agrees with you, Nancy, can and should support same-sex marriage because “respect for the personal and relational inherent Dignity of the human person” requires respect for their right to decide how to live their lives. Support of same-sex marriage does not require you to condone it, it requires you to acknowledge the right of same-sex couples to disagree with you. Objections to same-sex marriage disrespect the lives and choices of persons and disrespects their personal and relational inherent Dignity.
I hope you get what I am saying here, Nancy. I am not saying you are wrong about same-sex acts, I am saying your opinion does not control, and must not control, according to basic moral principles.
sean s.
Posted by: sean samis | Apr 24, 2013 11:49:41 AM
David, I was responding to Joe, but I understood him to use "the Catholic Church" to mean the American bishops in this context.
Posted by: WmBrennan | Apr 24, 2013 12:09:18 PM
Sean, regarding that which is moral, no one should be condoning or affirming any act, including any type of sexual act, that violates the inherent Dignity of the human person.
According to basic moral principles, all that is Good is ordered to Love. If there is no Truth of Love, we have no inherent Rights, and thus anything can become permissible.
Posted by: Nancy | Apr 24, 2013 12:33:43 PM
In "Liberty and Sexuality" by David Garrow, we get a sense of the response to the Griswold ruling by the Catholic hierarchy though it is true that over the years the Church supported the law overturned. But, in time, it recognized times changed.
For instance, Hartford Archbishop Henry J. O'Brien told the AP at the time that Catholics "recognize this decision as a valid interpretation of constitutional law." He noted, as did I, that "the morality of the question" is a separate matter. Archbishop Cushing (Boston) said it was "a matter of private morality." Father John Knott of the National Catholic Welfare Conference agreed, saying "the church does not seek to use the state to compel compliance with its moral views."
This is the nature of "support" meant. I assume that the Church also accepts that the state should allow people to divorce pursuant to their own beliefs, not those set forth by Catholic doctrine, and religiously diverse views on marriage overall should be left to private conscience, not one stance singled out by establishing sectarian doctrine of this sort.
Posted by: Joe | Apr 24, 2013 12:43:36 PM
[the last point about marriage, of course, is taken only so far, though the support of civil unions by some is applying the spirit consistently]
Posted by: Joe | Apr 24, 2013 12:45:21 PM
The idea that this pope will scale back on catholic teaching or trend to the left on social issues is wishful thinking.
Posted by: Matt Bowman | Apr 24, 2013 12:53:13 PM
Nancy,
You don’t have to condone any act which you believe “violates the inherent Dignity of the human person” but you do have to condone the right of others to make choices you don’t agree with.
If, as you write, “all that is Good is ordered to Love” then it is necessary for you to allow others to make choices you don’t agree with.
sean s.
Posted by: sean samis | Apr 24, 2013 1:14:42 PM
Regarding same-sex marriage, Pope Francis does not need to “scale back on catholic teaching or trend to the left on social issues”. He only needs to embrace the old concept of Religious Liberty.
sean s.
Posted by: sean samis | Apr 24, 2013 1:43:24 PM
One cannot support same-sex sexual unions without supporting same-sex sexual acts. If Pope Francis supports same-sex unions and thus same-sex acts, he is not in communion with Christ and His One, Holy, Catholic, and Apostolic Church and thus his election as Pope is not valid. (Catholic Canon 750)
Posted by: Nancy | Apr 24, 2013 2:44:32 PM
Nancy, one can support the right of same-sex couples to marry without condoning their marriage or condoning their sexual conduct.
One only need support religious liberty. Is religious liberty contrary to Catholic doctrine?
sean s.
Posted by: sean samis | Apr 24, 2013 2:50:26 PM
I'm not sure how conferring a public benefit that requires public recognition is a religious liberty interest.
My religion teaches me I should receive social security disability checks. I don't think I would get very far If I tried to argue that in court.
Posted by: CLS | Apr 24, 2013 3:23:31 PM
CLS,
Recognition of same-sex marriage is not the same as conferring a “public benefit” like a SS check.
If your SS check was denied to you because of your religious practices, then the situation would be closer.
If the state offers recognition of marriage to some, but denies it on a religious ground to others, that denial is a violation of religious liberty. Some commentators on this thread advocate just such a violation; this is why the topic of religious liberty is implicated here.
If the state refuses to recognize some marriages without a rational purpose for that denial, that violates Equal Protection; that is more-or-less the current situation in most States. Typically in the courts, religious liberty is not implicated.
sean s.
Posted by: sean samis | Apr 24, 2013 3:41:56 PM
I'm not so sure who is denying anything on religious grounds or that traditional marriage laws are without a rational basis. I would submit that your claim that there is no rational basis for treating different things differently is a religious one based on assumptions that you make about human nature and what human dignity requires.
Posted by: CLS | Apr 24, 2013 3:59:35 PM
Sean, what is irrational is to suggest that two persons who cannot exist in relationship as husband and wife, can be married to each other. Marriage, by its inherent nature, is restrictive to begin with. This debate is not about Marriage equality, it is about forcing the State to condone and affirm the equality of sexual relationships and thus sexual acts.
Posted by: Nancy | Apr 24, 2013 4:07:30 PM
CLS;
Several people on this and other threads object to legal recognition of same-sex marriage because it violates their religious beliefs. It appears that is also the position of the Church itself.
Several courts have found an absence of rational basis for the prohibition, and if there is a rational basis, it is for the proponents of that rational basis to tell us what it is; it is impossible for opponents to show the non-existence of something, and (theoretically) simple for the proponents if they are correct. Do you think there is a rational basis for prohibiting same-sex marriage? What is it?
A mere difference between things (things that are PERSONS in this instance) is not a sufficient reason to justify treating them differently, we are all different in some way. The rational basis needs more than “they are different” but to show why that difference must be addressed by the state. Should equal protection depend on hair color? Why should it depend on sexual orientation?
My only assumption about people is that, barring a reasonable need, legal discriminations are unjust. Do you disagree with this assumption
sean s.
Posted by: sean samis | Apr 24, 2013 4:48:58 PM
Nancy,
Your first two sentences are statements of your opinion, and you are obviously entitled to hold to those opinions. Others are entitled to different opinions. THAT is what this debate is about: the right of adult persons to disagree and to control their own lives as full human beings.
Legal recognition of same-sex marriage does not require the state to condone or affirm the equality of sexual relationships or sexual acts; it only requires the state to affirm the equality of HUMAN BEINGS. When the State recognizes the legal standing of any marriage, it is not condoning it, it’s just recording it for legal purposes. "So-and-so were married on day X in this jurisdiction." Whether it was a wise match or a good match is not relevant to the state.
sean s.
Posted by: sean samis | Apr 24, 2013 4:51:16 PM
CLS,
Patrick Brennan just put up a post on religious reasons to prohibit same-sex marriage. Just in case you are interested. This thread is by no means the only place this idea has been advocated.
sean s.
Posted by: sean samis | Apr 24, 2013 5:10:36 PM
Unfortunately, I cannot post a response to Patricks post directly, as it is not open to comments. I have a preliminary theological question to ask, however. The question is this: assuming that same-sex committed relationships exist (which they do) and that these couples will have children (by whatever means), does allowing them to marry make the situation worse, from the Church's point of view?
Posted by: Ellen Wertheimer | Apr 24, 2013 5:19:26 PM
Ellen, with all due respect, if a couple Love each other, they would not be engaging in any type of sexual act that violates their inherent personal and relational Dignity, and if they had profound respect for the institution of Marriage, they would not be trying to change the inherent nature of Marriage, to begin with.
Posted by: Nancy | Apr 24, 2013 5:21:32 PM
Sean,
With rational basis review, the burden is on the plaintiff to demonstrate the fundamental irrationality of the law, not the other way around. But, I find the idea of judges determining what is "rational" in this setting problematic. The two side of this debate are coming at it from incommensurable first principles. Judges should not really be in the business of deciding which first principles are legitimate and which aren't. I think it is rational for marriage to be limited as it always has to members of the opposite sex. I think the rational basis for this is that a man and a woman can consummate a marriage and conceive a child. Law looks to the general and not the particular, so despite the exceptions to this (e.g. infertile couples) hetersexual couples are generally fertile and have at least the possibility of fertility, whereas it is an impossibility for persons of the same sex. You view this distinction that I am making as irrational and discriminatory. We could argue all day, but neither would convince the other. We each hold these views in good faith and with the end of justice in mind. We disagree about that end. We each think our own view is "rational" but we really have no criteria outside our own traditions to decide what is or is not "rational." This is why this issue should be left to the democratic process and not forced onto this nation by a tribunal of nine.
Posted by: CLS | Apr 24, 2013 5:24:53 PM
Nancy,
With all due respect, that is not your decision to make for others. You are certainly entitled to your opinion, but others are entitled to theirs; since gay and lesbian persons are gay or lesbian because God or nature made them that way, they certainly will express their love for each other in a way that you might not approve of.
But they don’t need your approval, do they? No more than you need theirs.
Same-sex marriage is a demonstration of profound respect for marriage. Whether it CHANGES marriage is irrelevant. What matters is whether it HARMS marriage. Same-sex marriage does not harm marriage.
sean s.
Posted by: sean samis | Apr 24, 2013 5:28:27 PM
Ellen, you ask a very interesting question. I’ll be interested to see if Mr. Perry responds.
sean s.
Posted by: sean samis | Apr 24, 2013 5:31:03 PM
sean s.: It is actually more a question for Patrick than for Michael Perry.
Posted by: Ellen Wertheimer | Apr 24, 2013 6:57:33 PM
Why do Sean S and Nancy respond to each other? Nancy will always cite orthodox Roman Catholic theology. Sean S will argue that imposing a Roman Catholic take of natural law philosophy onto the American populace violates the religious liberty of Americans.
Both are right: Nancy is right that Roman Catholicism has veered toward declaring laws that violate Roman Catholic natural law teaching to be invalid.
And Sean S is correct in that America is not a Roman Catholic fiefdom, but rather it consists of people with a wide variety of religious belief, and no one's belief should be the basis of a law imposed on others.
Posted by: Joseph | Apr 24, 2013 9:41:38 PM
Joseph, let us be honest, there is no Religious doctrine that justifies engaging in same-sex sexual acts, nor does one have to be Roman Catholic to recognize the self-evident truth that because men and women are designed in such a way that a couple cannot engage in same-sex sexual acts without violating their personal and relational Dignity as human persons, charity requires we help those persons who are struggling with a same-sex sexual inclination, to overcome their inclination, heal their wounds, and learn to develop healthy relationships and friendships that only serve the Good of the other through authentic Love.
Posted by: Nancy | Apr 24, 2013 10:28:11 PM
"there is no Religious doctrine that justifies engaging in same-sex sexual acts"
There are doctrines of religions that supports same sex sexual acts. You don't have to agree with them, but they "justify" it. They also marry same sex couples.
Having sex with members of the same sex does not violate in the eyes of some of us the "relational dignity" of such people. They are "designed" to have attraction to members of the same sex and some form intimate bonds like different sex couples.
To respond to another comment, rational basis review shouldn't be applied. Sex and sexual orientation review should be heightened scrutiny. Also, given the clear animus shown especially and other factors, at worse rational basis review plus should be applied. Though, let's be honest, the justifications offered don't really -- especially if you are going to give broad civil union benefits to the couples -- pass even rational basis.
The procreation argument doesn't work. It isn't actually a barrier to entry. We let people who cannot procreate marry and these people aren't "exceptions." How insulting to them. They are also rans. No. They meet the purposes of marriage and procreation as compared to the ability to have sex isn't even necessary under Catholic doctrine. This is why you won't convince -- it isn't ACTUALLY THE REASON. People here think infertile couples can get married but not if they are the same sex. Anyway, if you discriminate by sex, rational basis is not enough.
Anyway, good for you Rhode Island, including the Catholic legislator focused on.
http://www.buzzfeed.com/chrisgeidner/rhode-island-senate-passes-marriage-equality
Posted by: Joe | Apr 24, 2013 11:57:04 PM
ETA: Also, if we even take procreation somewhat seriously, especially if we take into consideration that same sex couples are being harmed here and denied marriage rights, is still doesn't work that well.
For instance, the "responsible procreation" argument in part is that marriage ties down those able to procreate, even very old men. But, if you don't allow same sex marriage, bisexuals and even those generally attracted to the same sex will be more likely to "procreate irresponsibly" as compared to those legally married and encouraged to stay loyal to their values, especially if adultery laws were enforced.
Anyway, again, since heightened scrutiny is warranted, the "particular" should be looked at. There has to be a particularly compelling reason to deny people the right to marry, especially by sex/sexual orientation. NPR replaced a bit of Loving v. VA's oral argument in a story about Oyez.com. It was striking: the advocate for the state made just the sort of argument, looking at "the general," even talking about polygamy, incest and so forth. Mildred Loving supported same sex marriage for a reason.
Posted by: Joe | Apr 25, 2013 12:20:13 AM
As an individual, I believe homosexuality is wrong and a sin. As a Christian, I believe the Church has a duty to advocate against all things sinful, which includes gay marriage. However, as a citizen and member of the community, I believe that by denying some people the "right" (and I use quotes here as I would argue that the right at issue is not precisely to become married, but to enter into a contract or agreement with another person) to enter into a marriage, because another group (perhaps the majority) believes it is against the common good, we are justifying and validating other government action we find oppressive. My reasoning is as follows. If the majority's conception of what is best for the common good, or what is morally best, controls which agreements two adults may enter into, then why not use the same argument to require Catholic employers to provide contraceptives to their employees? By pushing for employment reforms some 100 years ago, the Church unwittingly opened the door to congressional oversight of every aspect of employment. I fear the same may happen in this instance if the Church again advocates government intervention in private marital contracts.
Posted by: Ben B. | Apr 25, 2013 1:40:57 AM
Nancy, whether there is a “Religious doctrine that justifies engaging in same-sex sexual acts” is irrelevant. You may if you choose seek to “help” gay and lesbian persons change, but it is their right to ignore your opinions and suggestions. It is their religious right to ignore whatever doctrine you believe and live their lives as they see fit.
This does not mean your religious opinions are wrong, or that your motivations are evil. It means you and the Church cannot in good conscience control the private decisions of others. You can advocate. They can ignore you.
Please read Ben B.’s comment; his reasoning is good.
sean s.
Posted by: sean samis | Apr 25, 2013 8:36:41 AM
Joe;
I agree that heightened scrutiny should be applied to this question, but since prohibitions against same-sex marriage fail even the lowest level of scrutiny (mere rational basis) it is not necessary to go further. Certainly not in this forum.
sean s.
Posted by: sean samis | Apr 25, 2013 8:45:12 AM
Sean, you claim that religion justifies same-sex sexual acts. What Religious Doctrine states that same-sex sexual acts are justified as acts that serve the Good of those persons engaging in them?
Posted by: Nancy | Apr 25, 2013 10:36:37 AM
I agree that rational basis isn't met but especially in a tough room, it isn't necessary merely to rely on the strictest argument when there is an easier one.
As to Ben, the right is to get a marriage license and this includes things like testimonial immunity which cannot merely be contracted. Also, since I think "Catholic employees" are not being wrongly treated by the mandate, especially per the current comprise, the "provide contraceptives" point is questionable. I don't know what that means -- does "provide" include the employee having health insurance from a provider where that is an option? I also don't know what is "unwitting" about employment reforms leading to additional regulations and "every" to me is a bit of hyperbole. Also, regulation doesn't mean everything is allowed. Finally, marriage licenses are not pure private contracts.
The push for consistency is appreciated though.
Posted by: Joe | Apr 25, 2013 10:46:11 AM
Many religions support same sex couples and I was going to include various links, but why? The material is easily available online. Same sex couples of various faiths get married in religious ceremonies, Jewish, Christian, Muslim, Buddhist, Wiccan or what have you. There are also dissenting views in the Catholic faith, including a large number of lay Cathoics. See, e.g., here:
http://en.wikipedia.org/wiki/Homosexuality_and_Roman_Catholicism
http://www.memorandum-freiheit.de/?page_id=518
The true issue is that some here think this "religious doctrine" is wrong but that is something else. Debating doctrine is all well and good, but it is tedious when people don't want to do simple research when making blanket statements.
Posted by: Joe | Apr 25, 2013 11:07:40 AM
Sean, to be clear, the fact that some Faith groups profess to be Christian while approving of same-sex "marriage", does not change the fact that one cannot be Christian and deny The Word of God Is The Word of God, as we have Christ's own Testimony for God's intention for Marriage, "...have you not heard that from The Beginning God created them male and female, and for THIS (singular, proximal, demonstrative) reason, a man shall leave his father and mother and be joined to his wife...?
Condoning same-sex marriage is an act of discrimination because it denies not only the essence of God, and the essence of Marriage, it denies the essence of being male or female, denies the essence of being husband or wife, and if there are children, the essence of being a father or mother.
Posted by: Nancy | Apr 25, 2013 11:10:32 AM
Nancy,
Nothing in your first paragraph is relevant. Even non-Christians have religious rights in America. A person need not be a member of any “faith-group” to have the same rights as everyone else.
Condoning same-sex marriage is also irrelevant. Legal recognition of same-sex marriage does not condone same-sex marriage, legal recognition of same-sex marriage condones Religious Liberty; nothing more.
sean s.
Posted by: sean samis | Apr 25, 2013 11:30:23 AM
Sean, if our Founding Fathers believed every man to be a religion onto himself, they would not have protected Religious Liberty, to begin with.
Posted by: Nancy | Apr 25, 2013 12:34:41 PM
Nancy, that’s pure speculation. The Framers included many free-thinkers, deists, and other dissenters. Every person has the right to decide for themselves what they believe and what practices they will follow. As long as they do no tangible harms: as long as they cause no injuries, financial losses or interfere with the liberties of others, then they must be free to follow their consciences. Otherwise our Religious Liberty is a sham.
Same-sex couples joining in same-sex marriage inflict no injuries, impose no financial loses, and interfere with no one else’s rights.
sean s.
Posted by: sean samis | Apr 25, 2013 12:58:56 PM
In response to Ellen Wertheimer, who wrote: "No one is asking the Church to perform the ceremony or even to treat the couple as married."
I am willing to bet everything I own that the Church and her institutions will indeed face legal mandates to "treat the couple as married." Easiest example: Catholic school does not extend insurance to employees' same-sex spouses, but does for opposite-sex spouses. Given the existing battle over the HHS mandate, and given the importance of insurance and similar benefits in the SSM drive, does anyone doubt that any insurance refusal will be a legal fight?
Regardless of one's position on the insurance issue, or on SSM or anything related, I don't see how anyone can confidently predict that such "mandated recognition" issues are coming.
Posted by: Joe Reader | Apr 25, 2013 4:30:33 PM
"Same-sex couples joining in same-sex marriage inflict no injuries, impose no financial loses, and interfere with no one else’s rights.
A florist in Washington and a wedding photographer in New Mexico would probably disagree with that statement.
Posted by: Brian English | Apr 25, 2013 4:38:22 PM
"I am willing to bet everything I own that the Church and her institutions will indeed face legal mandates to "treat the couple as married."
Even if we don't get to mandated recognition, could the Bob Jones University case be used to strip the Church and other conservative religious groups of their tax exemptions?
Posted by: Brian English | Apr 25, 2013 5:28:22 PM
Joe Reader,
You say: "Given the existing battle over the HHS mandate, and given the importance of insurance and similar benefits in the SSM drive, does anyone doubt that any insurance refusal will be a legal fight?"
I don't understand why a religious organization would hire someone in the first place that they would then refuse to give benefits to. In all the states where same-sex marriage is legal, same-sex spouses are just as much spouses under the law as opposite-sex spouses.
Has a Catholic organization ever refused to give spousal benefits to couples in which either the husband, the wife, or both have been previously married? It seems to me that if the Catholic Church does not invoke the indissolubility of marriage to deny benefits to the divorced and remarried, they don't have a leg to stand on in refusing them to couples in same-sex marriages (if they hire them in the first place).
Many dioceses, archdioceses, and local branches of Catholic Charities advertise themselves as Equal Opportunity Employers. If they are abiding by the law, they can't even ask prospective employees if they are married.
Posted by: David | Apr 25, 2013 6:16:34 PM
Brian English,
You say: "A florist in Washington and a wedding photographer in New Mexico would probably disagree with that statement."
Actually, New Mexico doesn't have same-sex marriage, but it has laws prohibiting discrimination against gay people.
Posted by: David | Apr 25, 2013 6:22:31 PM
"Actually, New Mexico doesn't have same-sex marriage, but it has laws prohibiting discrimination against gay people."
I believe the situation there was a commitment ceremony that the Christian photographer refused to memorialize. Do you actually believe that if New Mexico adopts gay marriage that such situations are not more likely to happen?
I think you are missing the primary point--the claim was made in one of the posts above that recognizing gay marriage would not interfere with anyone else's rights. If you want to distinguish the New Mexico case, what do you have to say about the Washington case?
Posted by: Brian English | Apr 25, 2013 6:47:01 PM
David's answer is yet again not addressed.
There are currently various types of marriages that violate the beliefs of other people, including those who remarry after divorce. Why exactly is only same sex marriage repeatedly put out there as an issue here? Churches won't have to actually perform such weddings. But, like public accommodations -- even if the religious beliefs of the owners sincerely clash with it -- cannot refuse to serve women because it is felt that men and women should not mix in public places or the races shouldn't mix or whatever, discrimination by sexual orientation can be made illegal. This does not violate "rights." It's a public area. Not private.
Posted by: Joe | Apr 25, 2013 11:54:39 PM
Brian,
If these two cases (in the States of New Mexico and Washington) are the ones I think they are, neither business person was harmed by same-sex marriage, they were punished by the Law, and properly so. These business people imposed their religious beliefs on customers and were appropriately punished for their illegally discriminatory conduct.
If a legal punishment in this case is a “harm” then it would not be a harm caused by the victims (the same-sex couples), it would be a harm caused by the business people’s own conduct; and they deserve exactly the same sympathy as any other law breaker.
sean s.
Posted by: sean samis | Apr 26, 2013 8:36:32 AM
Brian,
regarding “the claim was made in one of the posts above that recognizing gay marriage would not interfere with anyone else's rights” legal recognition of same-sex marriage will not interfere with anyone else’s rights. In neither of the two cases you’ve written about (in New Mexico and Washington) was any business person’s rights interfered with. The laws in those states properly prohibit discrimination on the basis of race, gender, religion and sexual orientation. If a person CHOOSES to engage in a business offering services to the general public, they cannot refuse services on the basis of race, gender, religion and sexual orientation. Such a law does NOT interfere with the rights of the business person, it prevents the business person from interfering with the rights of their customers.
Imagine if those two business persons had refused to provide services to a Catholic wedding (“those damn papists!”) you’d probably not regard the law’s punishment of that as “interfering with their rights”. Same situation with a same-sex wedding.
sean s.
Posted by: sean samis | Apr 26, 2013 8:44:50 AM
David, Joe, and anyone answering to my question -
If I understand you correctly, you question WHETHER any Church entity would want to do so. But it appears that you agree that the Church entity would have to recognize the marriage if, for any reason, it did not wish to. So I think we agree that the Church will have to recognize SSMs, and the only question is whether that's a good or bad thing.
Stepping back to the "whether" issue: Perhaps you disagree on the "should" part, but it seems to me that a Catholic employer might not want to endorse the relationship by treating the spouse as a spouse. An Ohio high school is in the midst of a controversy right now over firing a teacher in a same-sex relationship. The argument is that they did not fire her for her status as homosexual, but for her activity of living openly against Church teaching. That to me shows that Catholic entities will want to resist recognition.
But again, my question was not whether the Church should resist, but whether the Church will indeed have to "recognize," and it seems that you agree.
Prof. Wertheimer, if you're still watching, I wonder if you agree/disagree, as yours was the original statement that there are no recognition issues?
Posted by: Joe Reader | Apr 26, 2013 9:47:06 AM
What a twisted load of non-sense. You must have meant that the customers (via the state's coercion) imposed their religious beliefs on the customers.
Posted by: CLS | Apr 26, 2013 9:47:12 AM
pardon. The last sentence should read:
You must have meant that the customers (via the state's coercion) imposed their religious beliefs on the business owner.
Posted by: CLS | Apr 26, 2013 9:47:57 AM
CLS;
If a business refused to serve a Catholic wedding, and the Catholic couple sued and won, would you say that the Catholic couple had “(via the state's coercion) imposed their religious beliefs on the business owner”?
Change Catholic to Hindu, or African-American, or interracial; same answer?
sean s.
Posted by: sean samis | Apr 26, 2013 10:20:28 AM
"Why exactly is only same sex marriage repeatedly put out there as an issue here?"
Probably because up until about 20 years ago it violated the beliefs of basically everyone on the planet.
"Churches won't have to actually perform such weddings."
The First Amendment should prevent that, but the constant equivalence being made between opposition to gay marriage and the Jim Crow South very naturally leads to the Bob Jones case. Should the Church and other religious institutions that refuse to perform gay marriages have their tax exemptions pulled?
"This does not violate "rights." It's a public area. Not private."
So a florist shop is the equivalent of a diner in Alabama in 1955? And we are not talking about the owner refusing to sell flowers to gay men in her shop. She was asked to decorate a wedding outside her shop.
Posted by: Brian English | Apr 26, 2013 10:28:52 AM
"If a legal punishment in this case is a “harm” then it would not be a harm caused by the victims (the same-sex couples), it would be a harm caused by the business people’s own conduct;"
Come on Sean, I would bet there are dozens of flower shops in Seattle that would have gladly decorated that wedding. Why did this couple have to insist that this florist had to do the decorating or else face legal consequences? Tolerance should be a two-way street.
"Imagine if those two business persons had refused to provide services to a Catholic wedding (“those damn papists!”) you’d probably not regard the law’s punishment of that as “interfering with their rights”. Same situation with a same-sex wedding."
I absolutely would. And as a practical matter, why would a Catholic insist that a modern Know-Nothing had to decorate his or her wedding?
If a gay florist refused to decorate a Catholic wedding because of the Church's stance on homosexuality, should the state go after him for discrimination? I don't think so. What do you think?
Posted by: Brian English | Apr 26, 2013 10:40:01 AM
“Should the Church and other religious institutions that refuse to perform gay marriages have their tax exemptions pulled?”
Going to the sources:
“Government has a fundamental, overriding interest in eradicating racial discrimination in education . . . which substantially outweighs whatever burden denial of tax benefits places on [the University's] exercise of their religious beliefs." Bob Jones Univ. v. United States, 461 US 574, at 604 - Supreme Court 1983.
“We deal here only with religious schools—not with churches or other purely religious institutions”. Supra at 622
So the question is: does the government have a fundamental, overriding interest in eradicating same-sex discrimination in wedding ceremonies? Seems a stretch to me. Education takes years and is formative; a wedding ceremony is brief (they only seem interminable!) and celebratory. Not the same.
Is a florist shop equivalent to a diner? That the florist’s work would have occurred outside the shop is irrelevant because that would have been typical in this line of work. The florist, like the diner, when refusing typical services is engaging in illegal discrimination.
sean s.
Posted by: sean samis | Apr 26, 2013 10:45:18 AM
Brian, you wrote “I would bet there are dozens of flower shops in Seattle that would have gladly decorated that wedding. Why did this couple have to insist that this florist had to do the decorating or else face legal consequences? Tolerance should be a two-way street.”
Ah, yes. “Rosa Parks did not have to take THAT seat, there were plenty of others.” “That Negro boy did not have to drink from THAT water fountain, he could have drunk from another.” “That black man did not have to come into THAT diner, he could have gone elsewhere.” “That black couple didn’t have to buy THAT house in THAT neighborhood, they could have gone elsewhere; their children didn’t need to go to THAT school, they could have gone to another.”
Need I go on?
“If a gay florist refused to decorate a Catholic wedding because of the Church's stance on homosexuality, should the state go after him for discrimination? I don't think so. What do you think?”
First, the couple would have to object. In a civil matter, the State goes after no one. It merely enforces civil court decisions. If the Catholic couple complained, I think the courts would probably uphold their complaint; your hypo sounds like religious discrimination to me.
sean s.
Posted by: sean samis | Apr 26, 2013 11:10:10 AM
Brian,
You say: "Do you actually believe that if New Mexico adopts gay marriage that such situations are not more likely to happen?"
My point is that it is not same-sex marriage that brings about anti-discrimination laws to protect gay people. I think anti-discrimination laws and same-sex marriage are both attributable to a growing sentiment in the United States that it is wrong to treat gay people as second-class citizens. It may very well be that there will be more pressure and more instances of conflict between the rights of gay people and the wishes of some anti-homosexual business owners to discriminate against them in jurisdictions that have same-sex marriage. But it is not same-sex marriage per se that sets up the conflict. In any case, I do not see any reason why businesses should be allowed to discriminate against gay people, whether civil marriage is involved or not.
By the way, neither of the two situations (New Mexico and Washington) has been resolved yet. I certainly hope they are resolved in favor of the people whom I believe were discriminated against, but it is a bit too soon to use these cases to argue one side or the other.
Posted by: David | Apr 26, 2013 11:38:50 AM
"So the question is: does the government have a fundamental, overriding interest in eradicating same-sex discrimination in wedding ceremonies? Seems a stretch to me. Education takes years and is formative; a wedding ceremony is brief (they only seem interminable!) and celebratory. Not the same."
So I take it you would object to any attempt to remove the tax exemptions of religious institutions?
"Need I go on?"
But all your examples are based upon a presumption that being gay is the same thing as being black. Your argument also ignores the impact of slavery, the Civil War, and Jim Crow on this country.
Also, if the equivalence between being gay and being black is so obvious, why did it take until last year for President Obama to figure it out? Why did President Clinton, who grew up in the South, not see this equivalence until a few months ago when Chelsea finally explained it to him?
"First, the couple would have to object. In a civil matter, the State goes after no one. It merely enforces civil court decisions."
You are wrong about that. The New Mexico Case, the Washington Case, the E-Harmony case in New Jersey, and the Ocean Grove New Jersey case all involve or involved the state taking action on behalf of the couple that lodged the complaint. This is state power being exerted against people expressing their religious beliefs.
Posted by: Brian English | Apr 26, 2013 11:51:27 AM
[In reply to Joe Reader]
"the Church entity would have to recognize the marriage if, for any reason"
This is phrased too vaguely. What does "recognize" mean? It doesn't have to "recognize" it for purposes of internal church affairs. The church can refuse to hire a re-married person to teach the faith, divorce not allowed, so the person is a sinner not truly 'married' under the eyes of God and cannot be a minister of the faith.
OTOH, it has to recognize official marriages if it hires a janitor with a spouse (same situation as an example) and if the government requires health insurance for such businesses with over 50 employees, including for spouses.
"Catholic employer might not want to endorse the relationship by treating the spouse as a spouse."
Requiring a public accommodation to serve someone doesn't mean the business "endorses" the person being served.
"An Ohio high school is in the midst of a controversy right now over firing a teacher in a same-sex relationship."
A "church" high school can choose to only hire those that are loyal to the faith as applied to teachers, such as not hiring a teacher living with a person of the opposite sex in a sexual relationship. The high school has to be consistent though -- it cannot, even though various people violate the doctrine of the church, only target gays for that reason.
"But again, my question was not whether the Church should resist, but whether the Church will indeed have to "recognize," and it seems that you agree."
You appear to misunderstand the nuances of "recognize."
---
Brian, the florist shop also has to serve interracial couples, even though some (quite honestly) believe that violates the will of God. They also have to deliver "outside the shop" equally w/o discriminating by race. If a person wants to privately discriminate regarding who they give flowers, they have the right to do so, just as you can refuse to be friends with whomever.
Posted by: Joe | Apr 26, 2013 12:26:51 PM
Brian,
You say: "But all your examples are based upon a presumption that being gay is the same thing as being black."
No sane person would ever say "being gay is the same thing as being black." The only possible interpretation of that is that gay people are black!
Currently the EEOC and federal civil rights laws protect against discrimination based on race, color, sex, creed, and age. Being a Jew is not "the same thing" as being a woman. Being 40 or older is not "the same thing" as being dark skinned. But those who advocate certain basic rights for all see a commonality among those things, and many (including me) would argue that sexual orientation belongs among them, and indeed there are many state and local laws that now protect gay people.
What you are arguing, it seems to me, is that it is unacceptable for a Catholic to discriminate against a Jew, or for a Jew to discriminate against a black person, but religious liberty demands the right for Christians to discriminate against gay people.
Posted by: David | Apr 26, 2013 12:29:04 PM
And, yes, gays running public businesses would have to follow civil rights laws, including serving those whose beliefs clashes with theirs. Given the level of animus against them, they have done this for quite some time.
Posted by: Joe | Apr 26, 2013 12:30:50 PM
Sean,
I would defend the right of a florist or a wedding photographer not to participate in wedding ceremonies to which they object whether it be Catholic, Budhist, protestant, morman, Hindu, same-sex or otherwise.
Some people have strongly held religious beliefs about what sort of ceremonies they may participate in. I would fully support the right of a photographer or a florist not to be coerced into participating in events to which they object.
A non-state actor cannot be said to violate "religious liberty" under the First Amendment. The state action doctrine is a pretty uncontroversial aspect of constitutional law. That a law exists giving a private party a private cause of action is "state action." The state action was the creation of a law providing for the private right of action. The state's enforcement of the judgment would also constitute "state action."
If a 1L tried to argue that there was no state action in these cases, I would have serious doubts about his or her grasp of constitutional law. Whether or not such laws actually violate the First Amendment is more controversial and good faith arguments could be made on both sides. I tend to think the First Amendment rights of the florist and photographer have pretty clearly been violated, but there are plenty who disagree (including the courts that have weighed in on the photography case so far).
Posted by: CLS | Apr 26, 2013 12:35:18 PM
Where does this right to not "participate" stop? What is special about a florist? Prof. Eugene Volokh has argued for a free speech argument as to photographers, but as some have noted at his blog, "speech" entails a lot of things. Cakes, e.g., can be expressive.
But, if we are resting on religious liberty, why stop at florists? Can car rental places refuse to serve them? Or, printers? Caterers? And, why stop at weddings? Any number of events have some sort of significance here. Can people refuse to sell to same sex couples supplies for their children? If you don't want to "participate" in things, don't run a public business. Such things are frowned upon when race is the dividing line. But, religious liberty cannot play favorites, I assume. Or, are some religions better than others?
We are aware that the issue here isn't the florist violating the 1A. That isn't the only way the government can protect "religious liberty," just as public accommodation law promotes racial equality even though violating the law there doesn't mean the store owner violates the 14A. And, we can promote "religious liberty" in general as a moral principle, which is what sean has done.
Since you agree there is "state action," the rights of the customers also have to be respected. The customers here are selectively being told that their religious beliefs can be not respected, that they can be refused service because they have the 'wrong' beliefs. At least, if "florists" or "wedding photographers" are involved. Where this stops is unclear. If a storeowner has to serve people, including if they sell flowers at a supermarket, the line drawing here gets to be mighty confusing.
Posted by: Joe | Apr 26, 2013 12:52:37 PM
Brian;
In any action to remove tax exemptions of religious institutions, I would weigh the arguments before arriving at a conclusion. As long as this remains a hypo, my conclusions remain hypothetical also.
Regarding my examples “based upon a presumption that being gay is the same thing as being black.” No. Race, gender and sexual orientation are not the same, but they don’t need to be the same to be equally protected: all three are attributes bestowed by either God or nature (depending on one’s beliefs). None cause harm to third parties, so they are equally deserving of protection. Their differences don’t matter. Replace Black with female, or Catholic, or whatever.
What you don’t acknowledge is that my examples refute your claim that gay couples could have gone to another florist or photographer. That claim carries no weight and is invalid in these situations.
Regarding your questions about Obama and Clinton, I advise that you should not confuse public comments with private thoughts; especially from politicians. What they know in their minds and what they say out loud are not always the same.
Regarding the cases you mention which “all involve or involved the state taking action on behalf of the couple that lodged the complaint”; that is exactly my point. First someone files a complaint in civil court, and only then does the state get involved, making sure the parties follow legal procedure. If the court finds against a party then the State will ensure the court’s findings and judgment are followed. Basic Civ Pro.
These are examples of the State exerting power against people who have violated some law. If someone “expresses their religious beliefs” by illegally discriminating because of race, gender, sexual orientation, or religion; the victims have standing to use the power of the State to protect themselves. That the discrimination arises from “religious beliefs” is no answer to illegal conduct.
As before, think of a florist or photographer illegally discriminating against a Catholic. It’s pretty much the same thing.
sean s.
Posted by: sean samis | Apr 26, 2013 12:57:39 PM
CLS,
You say, "I would defend the right of a florist or a wedding photographer not to participate in wedding ceremonies to which they object whether it be Catholic, Budhist, protestant, morman, Hindu, same-sex or otherwise."
Would you defend the right of a florist or wedding photographer not to "participate" in an interracial wedding? Suppose a small business owner has no problem with black people marrying black people, and no problem with white people marrying white people, but has a genuine religious conviction that the races are not to be mixed. I don't think such a person could be considered to be discriminating against either blacks or whites. It would clearly be interracial marriage the person opposed to, feeling it was equally wrong for blacks to marry whites and whites to marry blacks.
The question in my mind is when a religious reason justifies an exemption from the laws, particularly anti-discrimination laws, which are presumably *intended* to dismiss religious reasons as justifications for discrimination.
Posted by: David | Apr 26, 2013 1:50:48 PM
"Brian, the florist shop also has to serve interracial couples, even though some (quite honestly) believe that violates the will of God. They also have to deliver "outside the shop" equally w/o discriminating by race."
Race is a special category because of the history of this country. And as I stated to Sean, being black is not equivalent to being gay.
The problem is that you, David and Sean consider the elderly woman running a flowershop in Seattle to be the equivalent of a Klan Wizard because she doesn't want to do the decorating at a gay wedding due to her religious beliefs. You can keep pushing that idea, but as more of these cases occur the level of acrimony in the country is going to go through the roof.
Posted by: Brian English | Apr 26, 2013 1:52:53 PM
"No sane person would ever say "being gay is the same thing as being black."
Are you kidding? Why do we always hear about Loving v. Virginia in the gay marriage context?
Posted by: Brian English | Apr 26, 2013 1:59:05 PM
Brian,
We hear about Loving v. Virginia in the context of same-sex marriage because it's the closest prior decision the Supreme Court has handed down about marriage.
You seem to be over-reading these comments. Race and sexual orientation have similarities, but that does not make them the same and no one on this thread has said they are "the same". Their similarities are significant enough to make the comparison between racial discrimination and sexual-orientation discrimination important. They aren't the same, but they also don't need to be the same.
sean s.
Posted by: sean samis | Apr 26, 2013 2:11:32 PM
"In any action to remove tax exemptions of religious institutions, I would weigh the arguments before arriving at a conclusion. As long as this remains a hypo, my conclusions remain hypothetical also."
In other words, you would support pulling the exemption.
"What you don’t acknowledge is that my examples refute your claim that gay couples could have gone to another florist or photographer. That claim carries no weight and is invalid in these situations."
They absolutely could have gone to another florist, and would have, if they hadn't been more interested in driving the Christian viewpoint out of the public square than getting decorations at their wedding. This is the same thing we see with some of the adoption cases. Gay couples could have gone to secular adoption agencies, but instead go to Catholic adoption agencies so that they eventually get shut down.
"What they know in their minds and what they say out loud are not always the same."
I don't care what is in their minds. The fact is, if the equivalence between race and sexuality was so obvious the expectation would have to be that they would have recognized it long ago. Are Obama and Clinton bigots, idiots or liars?
"First someone files a complaint in civil court, and only then does the state get involved, making sure the parties follow legal procedure. If the court finds against a party then the State will ensure the court’s findings and judgment are followed. Basic Civ Pro."
No, wrong again. These are complaints filed with government agencies, who then pursued the claims. Basic Admin. Law.
Posted by: Brian English | Apr 26, 2013 2:12:09 PM
Brian,
You say: "The problem is that you, David and Sean consider the elderly woman running a flowershop in Seattle to be the equivalent of a Klan Wizard . . . "
Funny, I don't believe Sean, Joe, or I ever mentioned the Klan. Could you perhaps point out where we said anything remotely resembling what you claim?
I realize it is difficult for many people to accept anti-discrimination legislation. The rapid acceptance of gay people no doubt leaves many people's heads spinning. But that is true to some extent regarding the change in the status of women, increased acceptance of Jews (particularly by Catholics), the election of a black president, and so on. Old feelings run deep. Old ways die hard. But I just don't see that we must always answer, "I have a religious objection," with, "Okay, do whatever you want."
Also, as I have pointed out, the two specific cases at issue here have not yet been decided by the courts. But they should be. You seem to be objecting to the fact that they are even being considered.
Posted by: David | Apr 26, 2013 2:16:21 PM
This is simply me thinking out loud, but I think it may be possible to differentiate between ordinary discrimination and discrimination in cases where religious beliefs are strongly implicated.
The florist, for instance, indicated that she has always served all customers regardless of their sexual orientation. She does not have a problem, in ordinary circumstances, serving homosexual clients. So, a homosexual walks in, asks for a bouquet or roses, she does not have a problem with that. This sort of provisioning of services does not implicate her deeply held religious belief that same sex marriage is wrong or force her participation in it. This can be differentiated, so I think, from the wedding context where the florist generally has to go to the venue, go the reception sight, discuss with the couple what they wish to convey with the decor of the wedding, etc.
This involves the florist in a much more intensive way in the "message" of gay marriage and involves, at least implicitly, affirmation.
So, simply selling flowers to a homosexual does not suggest affirmation of that person's activities any more than selling flowers to anyone else would suggest an endorsement of that person's behavior. There seems to me, however, to be a difference between this and participation in a wedding planning process.
Let's change the scenario somewhat. I am sure Michael Moore has a contract crew of videographers that he normally uses to film his videos. Presumably, these videographers' political views line up with Moore's.
Let's say that Bill Kristol contacts the videographers and asks them to film his latest documentary on why the Invasion of Iraq was the best thing ever and that we should invade Iran and every other country in the Middle East. If there were a law passed banning discrimination on the grounds of "political orientation," don't you think the videographer would have a good claim that requiring him to film Kristol's documentary would amount to compelled speech?
Is this scenario different than the photographer and florist?
Posted by: CLS | Apr 26, 2013 2:38:30 PM
Brian, you wrote “In other words, you would support pulling the exemption.”
I have to presume that is a willful misrepresentation of my position. In an earlier comment I wrote that “your hypo sounds like religious discrimination to me.” Why you ignore that now I do not know. I cannot think of a good reason.
The rest is neither here nor there, and I can no longer rely on your responding to my actual words.
Have a good life.
sean s.
Posted by: sean samis | Apr 26, 2013 2:39:52 PM
CLS,
You ask some interesting questions.
I sympathize with your effort, but I see no practical way to say where the line is drawn between normal business activities that don’t implicate religious views and normal business activities that do. Who would draw such a line? How would they do it? Would different beliefs have lines in different places?
Such a regime would actually invite courts into evaluating the florist’s religious beliefs to see what was really important to her, and what was not. This is a task no court should ever engage in. Perhaps there is a difference in the implicit message these business activities send, but the difference is very murky and open to wide interpretation. Some persons will say that any dealing with a gay or lesbian person in some small way affirms their orientation, and is therefore objectionable.
As much as you seek a solution, your solution may be worse than the problem you’re trying to solve. It is better, IMHO, for the courts to just say “If you offer this service, you must offer it to the general public.”
Your hypo about Bill Kristol using Michael Moore’s videographers is hard to sort out. Do videographers merely point and shoot what Bill or Mike tell them to photograph? Without knowing precisely their role and to what extent it determines the content, it’s kind of hard to say whether they should participate.
Better might be Bill Kristol using Michael Moore’s caterer, or his car service; people who play an important support role but who don’t contribute directly to the content. If political viewpoint were afforded the same protections as religion then I’d say the caterer or the car service would not be allowed to discriminate against Bill Kristol’s viewpoint. Making the videographers participate seems more like dragooning a minister into performing a wedding ceremony he or she has objections to.
sean s.
Posted by: sean samis | Apr 26, 2013 3:17:36 PM
"We hear about Loving v. Virginia in the context of same-sex marriage because it's the closest prior decision the Supreme Court has handed down about marriage."
Actually, Perry and Loving are not at all similar. In Loving, the Lovings were each sentenced to five years in prison for being married, with the sentences being suspended on the condition they never return to Virginia. In Perry, the people of California simply voted to amend their constitution to define marriage as being between a man and a woman. No gay couples were sentenced to prison. No one was even deprived of any rights because the California Civil Partnership statute gave all homosexual couples the same rights as heterosexual couples.
Posted by: Brian English | Apr 26, 2013 3:40:02 PM
"Funny, I don't believe Sean, Joe, or I ever mentioned the Klan. Could you perhaps point out where we said anything remotely resembling what you claim?"
Come on. Sean went through the litany of Jim Crow oppression. Why don't you just answer this question directly: Are those who oppose gay marriage bigots?
"Old feelings run deep. Old ways die hard. But I just don't see that we must always answer, "I have a religious objection," with, "Okay, do whatever you want.""
So in other words, when it comes to livelihoods that involve interaction with the public, Christians, Muslims and Orthodox Jews need not apply?
Posted by: Brian English | Apr 26, 2013 3:48:46 PM
Brian,
You ask: "Are those who oppose gay marriage bigots?"
No, I wouldn't say so, if this (from the Merriam-Webster Unabridged) is an acceptable definition of bigot: "a person obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : a person who regards or treats the members of a group (such as a racial or ethnic group) with hatred and intolerance." I would never argue that everyone who opposes same-sex marriage is a bigot motivated by hatred and intolerance. I wouldn't even have gone that far about everyone who opposed racial integration. I think—in fact, I am quite sure—there were people who quite sincerely thought that it was God's will that the races should be segregated. For hundreds and even thousands of years, people (like Thomas Aquinas) said and believed things about the Jews that we would find perfectly appalling today. I don't believe Aquinas was a bigot. I do believe he was very wrong.
You ask: "So in other words, when it comes to livelihoods that involve interaction with the public, Christians, Muslims and Orthodox Jews need not apply?"
You do like to cast things in the extreme, don't you? There are two cases here, one involving a photographer and one a florist, that have not been fully adjudicated yet. Even those of us who are firmly on the side of anti-discrimination laws and hope the photographer and florist lose are not advocating unemployment for Christians, Muslims, and Orthodox Jews! You *seem" to be arguing that claiming a religious justification should override all other considerations. That is not now, nor has it ever been, how American democracy has worked. Check out Religion Clause Blog a few times a week and you will see that First Amendment cases are both won and lost constantly, without any extreme consequences like the ones you mention.
By the way, is your claim that *all* Christians, Muslims, and Orthodox Jews have a problem with things like photographing gay commitment ceremonies and arranging flowers for same-sex weddings?
Posted by: David | Apr 26, 2013 4:24:28 PM
There is no correlation between discrimination due to our ancestry,( the fact that all human persons are members of the human race) which is immutable and discriminating between appropriate and inappropriate sexual behavior, which is changeable. It is not unjust discrimination to discriminate between appropriate and inappropriate sexual behavior.The State should recognize that even if we consent to engage in behavior that is not respectful, the fact that our inherent unalienable Rights are UNalienable, means we cannot relinquish this inherent Right and thus the State must continue to secure our inherent Right to be treated with Dignity and Respect.
Posted by: Nancy | Apr 27, 2013 8:52:07 AM
sean's reply to CLS seems to me correct -- the line drawing problems make what seems a reasonable thing problematic. The florist is more comprehensive and intense in his/her involvement. But, where is the line? A contractor closely works with a couple to fix up their home. Does the contractor "endorse" the couple and the couple's lifestyle? Since we cannot simply focus on same sex marriage, the number of scenarios are myriad. The line drawing will be messy and artificial.
In response to Brian, Christians, Jews and Muslims support same sex marriage, depending on the particular ones you are talking about. Others have a mixed variety of views. Some, e.g., think women and men should not mix, or at best, women have to be "modest" which entails them only going into public places somehow veiled. But, public accommodations laws does not allow such people for religious reasons not to serve mixed company or women not veiled.
The requirement to not discriminate in public accommodations does not mean any violator is akin to an organization that beat up or even killed black people. But, racial discrimination as a whole is related to other types of discrimination based on the person's identity, be it gender, sexual orientation, age or religion. This is why Mildred Loving of Loving v. Virginia fame supported the right to same sex marriage as an equal protection issue.
Some who oppose same sex marriage are "bigots" -- that is close minded sorts who treat others with hatred and intolerance. I agree with David & think the average supporter of segregation was unlike a "bigot," in fact many treated blacks fairly as a whole though supported an unjust system. But, same sex marriage is right on principle and those who oppose it, at least as a matter of the law, not religious sentiment for which divorce too might deem wrong, are wrong. They can hold such beliefs though but still have to serve those who disagree with them.
Posted by: Joe | Apr 27, 2013 10:42:21 AM
Sexual orientation is "immutable" in ways the word is reasonably applied as seen by asking a heterosexual if they can "choose" to be attracted to the same sex. But, this doesn't end the day, since one can be genetically geared to violence. Same sex attraction is not akin to that. Anyway, the state does not apply strict rules of "dignity" and "respect" to hand out marriage licenses. Many different sex couples have a paucity of that. That is more of a concern of the church.
By the rules set forth by our government, same sex couples as much as different sex couples should be provided marriage licenses.
Posted by: Joe | Apr 27, 2013 11:04:26 AM
"There are two cases here, one involving a photographer and one a florist, that have not been fully adjudicated yet."
The photographer in New Mexico was fined $7,000 by the state human rights commission, and that fine has been upheld by two lower courts, with oral argument recently being held before the New Mexico Supreme Court. How many $7,000 hits do you think a small business can take before it is driven out of business?
The florist in Washington, and now a bakery in Oregon, are being investigated by the state departments of justice. How many small businesses can spend the time and money to defend against these investigations? On that First Amendment site you refer to I bet they have discussed the concept of "chilling effect." Do you really think these individual cases don't have effects well beyond the individual cases?
"Even those of us who are firmly on the side of anti-discrimination laws and hope the photographer and florist lose are not advocating unemployment for Christians, Muslims, and Orthodox Jews!"
Not expressly, but that is certainly the result you intend.
Posted by: Brian English | Apr 27, 2013 11:59:17 AM
"In response to Brian, Christians, Jews and Muslims support same sex marriage, depending on the particular ones you are talking about.
I am well aware of the existence of Episcopalians. I am not aware of any sects of Orthodox Jews or Muslims who support same sex marriage. Of course there may be individuals within those religions who do.
" But, public accommodations laws does not allow such people for religious reasons not to serve mixed company or women not veiled."
Should a Muslim store should have the right to refuse to serve a woman wearing a mini-tank top and short-shorts?
" This is why Mildred Loving of Loving v. Virginia fame supported the right to same sex marriage as an equal protection issue."
As I pointed out above, the issues in Loving were nothing like those in Perry, or issues related to same sex marriage in general. No one is sentencing gay couples to five years in prison.
"They can hold such beliefs though but still have to serve those who disagree with them."
Could a Catholic baker refuse to bake a cake for a couple that was holding a dinner to celebrate the 10th anniversary of their adulterous affair?
Posted by: Brian English | Apr 27, 2013 12:19:08 PM
Nancy,
As Joe wrote, sexual orientation is as natural and immutable as gender; both of which are “changeable” only by extraordinary measures. Given that the State has no rational purpose for requiring gay or lesbian persons to change their behavior, discrimination is not just.
Whether same-sex acts are appropriate or not is not a decision the State should be involved with. Unless there is a demonstrated harm, whether the sexual conduct is appropriate or not is a personal, intimate decision protected by basic rights.
Whether some sexual conduct is “respectful” is likewise a personal opinion the State should not get involved with. If those engaged in the sexual conduct are of age and not acting under undue influence or coercion the state has no business even entertaining the question.
The Unalienable right is to decide FOR YOURSELF what is or is not appropriate for you; The Unalienable right is to secure your own dignity and respect by keeping the State out of personal decisions.
If the State takes a paternalistic and invasive view of these decisions; then that is DISrespectful and Undignified treatment.
You, Nancy, seem very concerned about the appropriateness of other people’s private conduct. But do you ever think about whether it is appropriate for you or the State to interfere? Our unalienable rights protect our decision making from just such interference. It is our right to be foolish or mistaken. Legislating wisdom in our private affairs is a disrespectful debasement of our human dignity.
sean s.
Posted by: sean samis | Apr 27, 2013 2:33:32 PM
Nancy,
Can you make an argument against same-sex marriage that does not use the words or concept of 'inherent dignity'? In other words, can you make a non-natural law argument? Otherwise, you will only preach to the choir.
And the only inalienable rights listed in the Declaration of Independence are life, liberty, and the pursuit of happiness. There is no right to be treated with dignity, and certainly no right to be treated with a definition of dignity that says it is undignified and disrespectful to one's own bodily integrity to engage in same-sex sexual activity.
Posted by: Joseph | Apr 27, 2013 2:47:28 PM
Brian,
You say, "The photographer in New Mexico was fined $7,000 by the state human rights commission, and that fine has been upheld by two lower courts, with oral argument recently being held before the New Mexico Supreme Court. How many $7,000 hits do you think a small business can take before it is driven out of business?"
Elane Photography was not fined, in the sense of having a penalty imposed. The couple who brought the complaint did not ask for damages. The court ordered Elane Photography to pay the couple's attorney's fees and costs. One might also ask how many lesbian couples can afford to run up a $7000 legal bill bringing action against a photography business who will not photograph their commitment ceremony.
The fact that there are only two cases and the Elane Photography case has been in the courts since 2006 indicates to me that the sky is not falling. You have made the leap from two anti-discrimination cases to unemployment for Christians, Muslims, and Orthodox Jews. I understand people's concern about cases like this, but you are blowing things out of all proportion.
Posted by: David | Apr 27, 2013 4:18:17 PM
"The court ordered Elane Photography to pay the couple's attorney's fees and costs. One might also ask how many lesbian couples can afford to run up a $7000 legal bill bringing action against a photography business who will not photograph their commitment ceremony."
You actually believe that couple paid a dime in fees to their lawyers? At most, they paid expenses pursuant to the standard contingency-fee agreement, but I doubt that.
And I am sure there were dozens of photographers who would have photographed the commitment ceremony. The intent of the couple was to punish this photographer for refusing to do so based upon her religious beliefs. It is pretty clear in the Oregon bakery case that that bakery was specifically targeted because of the owners' Christian beliefs.
"You have made the leap from two anti-discrimination cases to unemployment for Christians, Muslims, and Orthodox Jews. I understand people's concern about cases like this, but you are blowing things out of all proportion."
And since the common wisdom is that gay marriage is "inevitable", there will be more and more of these cases. Those who are not directly punished by the state for refusing to act against their conscience will still have the example of those who are staring them in the face. The lesson will be clear--either act against your religious beliefs or give up your livelihood. Eventually, orthodox religious believers of all kinds will be driven out of business or will simply have to find a different livelihood.
Posted by: Brian English | Apr 28, 2013 10:16:27 AM
The time, money and effort involved to take part in a lawsuit remains even when contingency fees are factored in. And, they are only worthwhile for the lawyer in limited cases. This is a major means to discourage litigation.
The cases were not based on state authorized marriage licenses, to be clear. It is not "gay marriage" (or same sex marriage, to be more accurate) that is "inevitable" as such. Same sex marriage already occurs nation-wide in private ceremonies. That is the case in the photography case itself.
Why the concern for "orthodox" religious believers here? The problem, with respect I think some people aren't really listening, is that the rules have to apply across the board. Public accommodations laws clash with the religious beliefs of a varied of religions, but in the public sphere, there has to be some acceptance that public law wins out there. I need to pay my taxes, even though they will be used in immoral ways. A pacifist bookseller cannot decide not to promote war by not selling books to those with pro-military beliefs etc.
Posted by: Joe | Apr 28, 2013 1:08:19 PM
Joseph, our Founding Fathers have acknowledged that our unalienable Rights upon which our Civil Rights depend, have been endowed to us from God, and thus the purpose of our unalienable Rights are what God intended.
Posted by: Nancy | May 2, 2013 8:52:41 AM
Nancy, people disagree as to “what God intended”; so we have this thing called religious freedom which 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 2, 2013 2:25:13 PM
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