Payback Time, Again

Equality Virginia, the commonwealth state’s marriage equality lobby, can claim a role in bringing the freedom to marry to all Virginians. Kudos all round. But now, what will they do? I know! Force bakers and photographers to accept gigs that they would rather turn down. That’ll show ‘em.

This week, the group sent out a fundraising letter stating:

While we celebrate marriage, opponents of equality are doubling down on intolerance—doing their best to push Virginia backward, and trying to…use the upcoming General Assembly session to ensure that “the rights and freedoms of those who disagree with the redefinition of marriage are treated equally and not discriminated against in their religious practice, education, business, or employments.”

“The situation is urgent,” the letter declares.

Along the same lines, the Washington Post “Civilities” advice column recently ran a letter about New York state innkeepers who were fined $13,000 by the state:

I am writing about the New York state couple who refused to allow a lesbian couple to use their farm for their wedding. As a gay man who recently married, I’m troubled by this situation because I find that too many gay people who say they are being discriminated against are not willing to see that others have different beliefs and values, especially when it comes to marriage rights. In planning my own wedding, I had only one bad experience when a vendor said it would not cater to my husband and me; I took my business elsewhere. As bad as this sounds, I believe that business owners should have the freedom to choose whom they serve…

Post columnist Steven Petrow responded, indignantly: “Of course, it’s a shame that not everyone in your shoes gets to celebrate with their second-choice of vendors.” He continued:

Frankly, I wasn’t surprised to see some columnists’ blowback against the lesbian couple or New York’s $13,000 penalty against the innkeepers…. I was surprised, though, by the large number of my LGBT Facebook followers who seemed to share that view. One gay man posted: “Why ruin someone else’s livelihood, when you still found another venue, still got married, and are still just as happy?” And this from a lesbian reader: “Let us not start becoming bullies after everything we fought for….

Clearly my sympathies lie with the McCarthys [the lesbian couple], not the farm owners. I can only imagine the hurt and humiliation the couple felt when they were turned away, and I applaud them for not taking the insult quietly.

To which the Cato Institute’s David Boaz tweeted, “Let’s go around fining everyone $13,000 to show the need for tolerance.”

As I’ve said before, whether you think government should force small businesspeople to provide services for religious ceremonies they feel violate their religious beliefs has all to do with your concept of individual liberties, and whether these are fundamental rights of individuals or are gifts for the state to bestow as progressive elites decide is fit, and holding that the right not to act is no right at all. For those in the latter camp, there is just no convincing them that this is all so very wrong.

More. Making A Conservative Case for Gay Marriage. It isn’t helped when the secondary message is that we have no tolerance for religious dissension.

Furthermore. Welcome, Huffington Post readers and viewers from other links. Also check out our most recent postings.

67 Comments for “Payback Time, Again”

  1. posted by Tom Scharbach on

    I support laws protecting freedom of conscience, as long as the laws meet a three-part “equal means equal” test:

    (1) Religion-neutral – The law must be religion-neutral, protecting exercise of both religious conscience and non-religious personal conscience;
    (2) Issue-neutral – The law must be issue-neutral, applicable to all laws, or if limited to a subset of laws (e.g. marriage), to all laws of the subset; and
    (3) Class-neutral – The law must be class-neutral, treating all classes of citizens on an equal footing, granting no special protections to any class of citizens or permiting no special discrimination against any class of citizens.

    The proposed Michigan law, HB 5958, comes closer to passing the test than the laws proposed to date in other states:

    (a) Religion-neutral – The proposed law is not religion-neutral, protecting exercise of “the practice or observance of religion, including an act or refusal to act, that is substantially motivated by a sincerely held religious belief, whether or not compelled by or central to a system of religious belief”, but not protecting non-religious exercise of conscience at all;
    (b) Issue-neutral – The proposed law is issue-neutral, applying as it does to “all laws of this state and of a political subdivision of this state, and the implementation of those laws, whether statutory or otherwise and whether adopted before or after the effective date of this act”;
    (c) Class-neutral – The law is partially class-neutral, permitting no special discrimination against any class of citizens. However, because the law is not religion-neutral, the law grants special protections to citizens professing religious belief, protections denied to the citizens who have strong convictions based on non-religious personal conscience.

    Although the law fails the “equal means equal” test, it is (with the single exception of Wisconsin’s proposed constitutional amendment protecting “freedom of conscience” with respect to all laws of that state) the closest yet to passing the test.

    We can debate the wisdom or necessity of the bill (the law is a restatement of court-developed standards, for the most part — but the bill (which does not single-out same-sex marriage as the sole protected issue and single out gays and lesbians for special discrimination) is a step in the right direction. At least it is not a “screw the gays” law dressed up in high-minded language.

    Assuming that the law passes, which seems likely, the proof of the pudding will come in future years, as individuals bring lawsuits to prevent application of the laws of Michigan in particular circumstances.

    Will the “religious freedom” to refuse to provide goods and services to an inter-racial marriage be accorded equal dignity with the “religious freedom” to refuse to provide goods and services to a same-sex marriage? Will the refusal of an employer to hire married women be accorded equal dignity with the refusal of an employer to hire a gay or lesbian? Will Satanism and Shamanism be accorded equal dignity with Christianity? How about the “religious freedom” of religionists who elect to live under the laws of their particular religion, when those laws conflict with the laws of the state. Will the Amish be exempt from building and zoning laws? Will Christians who hold to Proverbs 13:24 be exempt from child protection laws? Will Muslims be permitted to apply Sharia law to domestic contracts, such as marriage, divorce and child custody?

    The courts will have to decide these and many other issues, just as the courts now do. Nothing much will change. In that sense, the law is window-dressing for social conservatives, and not much more. I would like to see a law that actually protects freedom of conscience, religious and non-religious alike, rather than laws that only make a pretense of doing so. If I were a legislator in Michigan, I would propose and amendment extending the law to “personal conscience”, and if the amendment failed, vote against it. I do not believe that it is in our best interests as a nation to elevate religious conscience above personal conscience. Religious conscience is a subset of personal conscience.

    I understand the game. The so-called “religious freedom” laws being proposed are part of the Republican “massive resistance” strategy, a sop to religious conservatives. The proposed laws were never intended to protect freedom of conscience. But we have an opportunity to use the thrust for such laws to do some good. It won’t be easy, because protecting non-religious freedom of conscience is anathema to religious conservatives. But we could use the opportunity to educate about freedom, and perhaps actually do something to further freedom. As usual, you aren’t helping.

    I suppose I shouldn’t be so blunt. But I am tired to death of the charade.

  2. posted by Kosh III on

    “I believe that business owners should have the freedom to choose whom they serve…”

    Jim Crow ’nuff said!

    • posted by Throbert McGee on

      Jim Crow ’nuff said!

      NOT “nuff said,” Kosh, because under Jim Crow laws, business owners who WANTED to serve both black and white customers were not always permitted to do so.

    • posted by Craig123 on

      These small, independent business owners have said they have no issue serving openly gay customers who come into their shops or seek their services for events other than weddings. It’s being forced by the state to sell their services to marriage ceremonies that they feel violates their religious beliefs. And just what does the left gain by its obscene bullying, and the bullying by the “progressive” state? A sense of vindication. Truly, truly ugly behavior. Shame on you all who support this.

      • posted by Tom Scharbach on

        What always interests me, Craig, is that none of you ever talk about the logical corollaries (religious objection to mixed-cult marriage, religious objection to inter-racial marriage, religious objection to remarriage after divorce). You are all as silent as the grave when it comes to anything other than religious objection to same-sex marriage.

        As should be evident from my comments over various thread, I believe that if we exempt religious objection to same-sex marriage from public accommodation laws, we should also exempt religious objection to the corollary cases. You?

        I also believe that religious objection to any law should be accommodated, along the lines of the proposed Michigan statute. You?

        And finally, I believe that non-religious personal conscience is every bit as worthy of protection as religious conscience. You?

        If you want to have a discussion about the interplay of personal/religious conscience and laws of general application, then let’s have a discussion. If all you want to play the “shame on you” game, and nothing more, then I’m not interested. Shit, it doesn’t take any brains to do that …

      • posted by Houndentenor on

        I’ll repeat my position on this once again. If they aren’t going to serve certain customers then that information needs to be clearly available. I do not want to patronize a business for years only to discover that they are anti-gay bigots. If this is your position of “conscience” then say so up front and I will make decisions about where I shop accordingly and so can everyone else. Don’t spring it on me when it’s suddenly convenient for you to do so.

  3. posted by Mike in Houston on

    Once again, I want Stephen to answer this question: where does this so-called religious liberty end?

    If baking a cake for a gay couple’s wedding is a violation, then what about:

    – baking a cake for their anniversary?
    – baking a cake for their child?
    – taking a family portrait?
    – serving them a meal as a family?
    – providing health care services to a gay person?
    – selling a gay person a house?
    – renting an apartment to a transgender person?

    Please spell this out — and let me know if this also includes me being able to not do any one of those things for someone based on their race, religion, ethnicity or sex.

    If you can’t, then please stop berating people who avail themselves of public accommodation laws from your safe haven with marriage equality & employment non-discrimination laws.

    • posted by Throbert McGee on

      Once again, I want Stephen to answer this question: where does this so-called religious liberty end?

      I would phrase it slightly differently, Mike in Houston: when does the burden of proof shift? In other words, when do we say “Okay, at this point the business-owners/defendants are no longer obliged to prove that their discrimination against the plaintiffs was rational; instead, the aggrieved-customers/plaintiffs are obliged to explain why their claim of wrongful discrimination is rational?”

    • posted by craaig123 on

      Ah, the old slippery slope argument — if people of conservative religious faith are permitted by the state (from which all liberties originate) to not be forced by the state (and vindictive leftists) to provide services to gay weddings, what next, Jim Crow returns?

      If gay people are allowed to marry, what next — allowing people to marry their pets and their siblings (maybe a group marriage of pets and siblings)?

      The slippery slope — ok for me against thee, but not thee against me.

      Obviously, of course, cases about the appropriateness of law are judged on their rationality and merit.

      • posted by JohnInCA on

        I’m not sure “slippery slope” was ever intended to be applied to worries that with legal sanction people will go back to acting how they did just a few decades ago. Hell, to how they acted last year in some places.

        Discrimination, in housing, in health care, in basic services, exists, currently, against gay people. It’s not as wide spread as it was, but it still happens. Giving it legal sanction will only encourage it.

      • posted by Houndentenor on

        Slippery slope is indeed a sorry excuse for a rational argument, but in this case we’re merely asking for a clarification. At the moment these religious exemptions only seem to apply to birth control pills and gay weddings but they are being worded broadly enough to apply to just about anything that might be part of someone’s religion, which is pretty much anything.

      • posted by Mike in Houston on

        How about: Just. Answer. My. Question.

        Or is that somehow beyond your intellectual heft?

  4. posted by Houndentenor on

    I’d have more sympathy if the very people crying foul now weren’t the very ones who fought hard to deny any compassionate treatment of gay couples. The Virginia anti-gay amendment went far beyond banning any legal recognition of marriage. It also banned any partnership recognition of any kind. It was horrible so for those people to expect empathy from me now is laughable. They deserve to be treated exactly the way they wanted gays treated for an equal amount of time. I’m not saying that’s what will or even should happen, but they would be deserving of being treated as they wished to treat others.

    • posted by Tom Scharbach on

      Three thoughts:

      (1) As far as I can tell, no proposed law has yet been introduced into the Virginia legislature for the coming session, so we have no idea what they might propose.

      If a law is proposed that protects personal conscience as well as religious conscience and meets “equal means equal”, then there is something to talk about. Unlikely, but I can be surprised, as I was in Wisconsin and somewhat in Michigan.

      If what they come up with is just another variant of “screw the gays”, then Stephen and his Cato pals will be bleating on and on about “liberty” in their usual echo chamber, but there is nothing to talk about.

      (2) With respect to your observations about sympathy/empathy, it doesn’t help things that the conservative Christians and their “libertarian” allies pushing the laws are using gay/lesbian opposition to “screw the gays” as yet another excuse to bash gays and lesbians.

      Tony Perkins warns about “boxcars”, Stephen compares us to “Robspierre”, and the rest rant on along similar lines, variants of the old “gays and lesbians are hell bent on destroying Christian and/or American values” meme. It is a step up from child snatching, I suppose, but not much of a step.

      (3) The “screw the gays” laws are so transparently discriminatory and political that most Americans can see right through them, understanding that the proposed laws have nothing at all to do with freedom of conscience. I think that is what is driving the proposed laws (e.g. Michigan) in the direction of “equal means equal”, which might, in turn, lead to a real and more-or-less rational discussion of freedom of conscience, and its role in American life. If that happens (and I’ll admit that it is a long shot), then some good will come out of this.

    • posted by craig123 on

      “I’d have more sympathy if the very people crying foul now weren’t the very ones who fought hard to deny any compassionate treatment of gay couples.”

      Wow — where in the world do you have evidence that these small business owners were “the very people…who fought hard to deny any compassionate treatment of gay couples.” I mean, do you just make up whatever you want to serve the narrative?

      • posted by Houndentenor on

        It seems implausible that someone voted against an anti-gay marriage ballot initiative but then would take such a public anti-gay stance. Do you disagree?

  5. posted by Tom Jefferson III on

    It is pretty sad that the ‘debate’ gets framed as you either must worship the side that claims to believe in ‘religious freedom’ or worship side that claims to believe in ‘civil rights’. Pretty sad and (that it gets promoted by people that should know better) shameful.

    Religious exemptions to rules and regulations is nothing new in America and certainly worth having a fair and honest conversation about.

    However, their are real world-practical reasons why we don’t just let anyone opt of of any rules that they dislike. Just as their are reasons why — in looking at religious exemptions — we should address the matters addressed by the other Tom.

  6. posted by Tom Scharbach on

    First, as Tom Jefferson points out, Americans have been grappling with issues of personal/religious conscience, in many contexts, for a long time. In general, I think that we are doing a half-decent job of sorting it out, particularly in the courts. I’m not sure what additional laws will add to the mix, because the laws will have to be interpreted (what, exactly, is a “compelling state interest”, for example, and what, exactly, is a “substantial burden”) by the courts. Adding laws to the mix won’t change much in my view. The courts will have to sort it out, one case at a time.

    Second, it seems to me that we could approach the “public accommodations” questions from a number of directions: (1) eliminate public accommodations laws, or (2) keep public accommodations laws but develop appropriate “de minimus” safe-havens for small businesses (as we do in employment law), or (3) enact laws or exemptions to laws protecting the exercise of personal/religious conscience with respect to public accommodations law. We are not limited to fights over “screw the gays” laws, which are political construct to appease the conservative Christian base of the Republican Party, and it isn’t self-evident to me, anyway, that we need yet more laws piled upon existing laws, to protect personal/religious conscience.

    Third, public accommodations laws affecting gays and lesbians, although the current political flash point, are a relatively insignificant part of the larger question. Laws of all manner and description burden free exercise of conscience. In Wisconsin (as in Minnesota, probably) we grapple with issues of conflict between laws of general application and personal conscience all the time, having relatively large populations of Amish, Hmong and Native Americans. A current question percolating in my area of Wisconsin, for example, deals with zoning/building laws that are in conflict with Amish religious belief/practice. A county in our area has a hard-nosed county attorney who is determined to impose building/zoning requirements like hard-wired smoke detectors on the Amish, and the Amish, understandably, are fighting the county attorney’s attempts to condemn their homes and evict them. Another ongoing question, which has involved both the legislature and the Wisconsin Supreme Court, not involving religion but personal conscience instead, is the fight over whether farmers who do not believe in pasteurization can sell unpasteurized milk to customers who also do not believe in pasteurization. By my count, the ACLU is currently involved in several hundred cases across the nation to preserve/defend personal conscience when it conflicts with laws of general application, and the ACLU is but one group involved in this arena.

    Fourth, despite what you might be led to believe by Stephen’s trivialization of the issue, the question of conflict between personal/religious conscience and laws of general application is a real issue, and an important issue. It deserves much more thoughtful treatment than Stephen’s posts playing political ping-pong give it, and certainly more respect than David Boaz’s snarky tweet “Let’s go around fining everyone $13,000 to show the need for tolerance.”

  7. posted by Tom Scharbach on

    More. Making A Conservative Case for Gay Marriage. It isn’t helped when the secondary message is that we have no tolerance for religious dissension.

    I would quietly point out that Saletan’s article has nothing at all to do with “religious dissension”.

    But, more to the point, if the “conservative case” now consists of conceptually turning gay and lesbian couples into “infertile hetersexual couples” in order to con religious conservatives into thinking same-sex marriage is “traditional marriage” with different genitals, that’s a wicked poor case to make in my opinion.

    Jon Rauch and a number of others have made far better, broader, non-deceptive conservative cases.

  8. posted by Tom Jefferson III on

    scenario….

    gay couple is in a car accident. The nearest hospital is affiliated with the Catholic Church. What sort of discrimination is the hospital entitled to practice in line with its beliefs about homosexuality…..or

    the major employer in a small town (say a factory that makes car or shoes or dog food) decides that he has a religious objection to gay marriage. A blue collar employee in the town has been married to his same-sex partner and is now given a choice; divorce the man or be fired…What does he do? Since this is the major employer in town and the employee has family ties (and the employee probably cannot afford to simply move to an upscale, upmarket gay neighbor in the big cities)….,

    Can the owner of a grocery store or a pharmacy ban gay couples entirely? Can a utility company shut down gay couple’s homes?

    Are these wild examples? Maybe, maybe not. However, saying that “people should be free to do whatever the hell they want”, (Libertarianism 101) is overlooking the complex nature of religious freedom in America.

    Yes, religious freedom is a fundamental right in America. Yes, we have a long and messy history in America of making accomodations (sic) and exemptions to rules in order to protect religious freedom.

    • posted by Mike in Houston on

      You’re not going to get Stephen or any of the other homocons to actually address this… and from what has been posted (repeatedly), it seems that they would agree with this:

      http://youtu.be/eXE8vKM7h6A

    • posted by Kosh III on

      “Are these wild examples? Maybe, maybe not.” Not so wild.

      Back in the early 70s I was working for a major insurance co owned by a farm bureau organization. In a district meeting the question of what to do if an insuree was gay somehow came up.
      The answer given was that even if it was illegal to discriminate, the company would find some way some how to drop that customer.

      If you are in business to serve the public, you must serve all the public. if You can’t–find another job. I’ve personally see Jim Crow in action as a child: “if it looks like a duck and quacks like a duck……” this issue is a duck.

    • posted by Lori Heine on

      Truth flash into your insight on “Libertarianism 101.” Anything subsidized by tax revenue, or a matter of life preservation, would be considered a legitimate public accommodation by any libertarian not living on another planet.

      Tom, you know better than to attempt teaching “Libertarianism 101.” For crying out loud.

      When leftists lie about what we believe, it doesn’t make libertarians more inclined to trust them. There’s a little lesson in Human Nature 101.

      • posted by Mike in Houston on

        I didn’t notice anyone using the “L” word here Lori — except you.

        If anything the “lie” being bandied about in this blog is that somehow these “religious liberty” proposals have anything to do with small-L libertarian principles. They are — and always have been — attempts by certain religious conservatives (lately primarily under the T-Party banner) to game the system so that they can retain their power privileges.

        • posted by Lori Heine on

          “I didn’t notice anyone using the “L” word here Lori — except you.”

          Then read the comments so you can follow the thread. There’s a concept.

          I’m not too crazy about the social conservatives’ notion of “religious liberty,” either. But the “they’re bad people, so we should hit them” argument doesn’t work with me, either.

          They are undoubtedly bad people. But democracy, or even civil society, will be impossible if force must be resorted to every time we can show there are bad people we have reason to dislike.

      • posted by Houndentenor on

        Lori, you must understand that your kind of libertarianism is not the only kind. Recently I was researching candidates for the November elections and as there were a couple of elections in which there were no Democrats (and even then I research them to know for whom I’m voting) I considered voting for the Libertarian over the Republican. In every case the Libertarian on the ballot was a conspiracy theory nutball and nothing at all like the kind of libertarian you are. I’d have certainly voted for you or someone like you over the other choices (A Teavangelical nutjob, and a Green party nominee completely out of touch with reality).

      • posted by Tom Jefferson III on

        Lori;

        I have read quite a few books on Libertarianism (by its defenders) and spoken with people — formally involved in the Libertarian Party in the 1980s and 1990s. I would think that would give me some insight into the philosophy and its policy implications.

        Libertarianism (the Ayn Rand-rightwing variety) has a tradition of seeing ALL civil rights laws (that impact the private sector) as infringing on the First Amendment rights of the business owner, land lord, or other private owner.

        This was certainly the position taken by Harry Browne — the LP Presidential candidate in 1996 and 2000 and — from what I hear — was the common position of the party…..until fairly recently where the party elected to makes its platform shorter and a bit vaguer.

        • posted by Lori Heine on

          Houndentenor and TJ III, it’s true that right-wing libertarians have been favored by the Libertarian Party for some time. They frequently take stands I find troubling. I think some time ago, I remarked on the fact that I differ from them about “states rights” issues in some ways.

          Tyranny is tyranny, regardless of whether it happens at the federal level, or the state, or the county, or the municipal. That’s the position of left-libertarians, anyway. Right-libertarians tend to split hairs, depending upon the level of government doing the tyrannizing.

          Anarchists are beginning to become more outspoken about stating our case. This is something many progressives are taking an interest in. It’s also making the left-leaning factions in the media very nervous.

          The hatchet-job MSNBC is doing against libertarians is a perfect example of this. They’re trying to make it look as if ALL libertarians–without exception–are right-wing. It isn’t hard to figure out why they’re doing that. After all, we think many statist progressives are abject frauds who have betrayed every principle they claim to believe in. We see most (not all, but most) statist progressives as little more than an alternative form of conservative.

          There are commenters here who are willing to investigate beyond the bounds others would try to set for them. That’s an encouraging sign.

          • posted by Tom Jefferson III on

            Well…I still think that Lori and I disagree on the terms…but that may be a topic for another thread.

            MSNBC has been following the Fox News theory of business (albeit from the vantage point of appealing to progressives and members of the educated political center). Hence….Much of what is bad about Fox News will probably be so for MSNBC.

            It might be worth noting that; the BULK of the money going into defining and promoting ‘libertarianism’ is coming from folks that love Ayn Rand, folks that love the fact that a Republican Congressman says that he loves Ayn Rand, and a bunch of survival of the fittest ‘propertarians’.

            Norm Chomskey is probably the only person who can speak to a libertarian left (but his lectures and arguments do not really fit into a sound byte).

          • posted by Houndentenor on

            I once had a long conversation with an Anarchist. I found his views interesting but also naive. He actually believed that given enough time social pressure would have forced businesses and schools to end racial discrimination. This was especially bizarre because he grew up in South Carolina. I do think that sometimes we come in too quickly with a top-down approach and in fact a lot of the failure of the left has been trying to work nationally while the right was organizing locally which means that we sometimes had congress and the white house while they controlled the school boards, city councils and state legislatures. Most of the policies that affect us are actually local ones so that has been a gigantic fail. It’s also true that the left is horrible with messaging and is often a big ham-fisted when it comes to dealing with people who do not want to move forward even while society does. That could all be done better and people like you are probably the ones to best bridge that gap. (I don’t see that happening because the people who run the national organizations are too insular to listen.)

            I’ll repeat what I’ve said for a long time. The right had ample opportunity to offer a compromise. In 2000 an agreement for nationwide recognition of civil unions would have been a better deal than any of us expected to see in our lifetimes. In 2004-2008 a deal for gay marriage nationwide with a religious exemption written in would have seemed like a good deal. Now they are losing the battle and want to make themselves sound like victims. You know whose a real victim? My old college friend who had to move out of the house his partner left him in the middle of the night with the things he could get into a truck (including his grandmother’s piano) because his partner’s long estranged family were about to show up with a court order to claim the property and everything in the house. I know too many stories like that to feel bad for a bigoted florist or baker. Personally (and again, sorry for repeating myself) I’d just take my business elsewhere and make sure everyone I knew heard about the bigoted owners, and that would be that. But for them to be such assholes and then act like victims is the new postmodern absurdity. Bigot as victim. Really…how did we come to this?

  9. posted by Don on

    I think the argument centers around same-sex marriage ceremonies and serving those events. However, it is deftly pointed out here that the mission creeps. Family portraits? Hospital visitation and/or medical treatment decisions? If you don’t acknowledge that this is a legal spouse, then how do you allow the spouse in for visitations or allow medical decisions?

    Tom has outlined how any such law would need to be written (neutrality tests) but in order to make it broad enough to pass that scrutiny, I can see someone say ‘well, they can’t make medical decisions because I don’t see a marriage here . . .’

    I would feel sorry for the person that tried to make that hold up in court with a wrongful death action.

    • posted by Tom Scharbach on

      Michigan’s HB 5958 has just been fast-tracked to the state Senate, where it is expected to pass. I think that we are about to see the boundaries of broad-scope “religious freedom” law tested in the courts relatively soon, Don. I think that we are going to see a lot of litigation in that state over the next 5-10 years, and it is not going to be one-sided, either.

      Michigan has a relatively high population of Muslims, particularly in the Detroit area. How long will it be, do you suppose, before the state’s bigamy laws (laws preventing men from having more than one wife at a time, i.e. polygamy) are challenged as a “substantial infringement” upon the religious belief? The state hasn’t got a prayer of demonstrating that polygamy is not “substantially motivated by a sincerely held religious belief”, given the scriptural basis for the practice in Islam and its long religious/cultural history, so the state will have to rely upon the combined “compelling interest” and “least restrictive means” tests specified by the Michigan law if it is to continue to enforce its bigamy laws against religious Muslims.

      Just how is the state of Michigan going to demonstrate that the ban on polygamy is both “in furtherance of a compelling governmental interest” and “the least restrictive means of furthering that compelling interest”, do you suppose, and do so using religiously-neutral arguments?

      Just for the record, I have thought for a long time (and recall posting about it on IGF a few years ago) that polygamy would be a much easier case than marriage equality, constitutionally, because polygamy bans infringe on religious belief in a way that marriage equality does no, bringing in 1st Amendment protections, and eliminates all arguments about the standard of review.

      • posted by Tom Jefferson III on

        1. Research on polygamy (wow, this thread has gone to all sorts of places) would be relevant — especially in terms of abuse and exploitation and sexism and the like.

        2. With the farm B&B (or it a rental wedding place) I have to wonder if the gay couple was refused when they arrived (so no sort of heads up that this might be an issue for the owners) and was their a full refund given? And — as a practical matter — was the gay couple able to find some where else?

        • posted by Tom Scharbach on

          Research on polygamy (wow, this thread has gone to all sorts of places) would be relevant — especially in terms of abuse and exploitation and sexism and the like.

          Just to be clear, I am not a advocate of polygamy. I think that a rational basis exists for limiting marriage to two persons, and I think that the “rational basis” test, without heightened scrutiny, applies to the constitutionality of banning polygamy.

          That is, however, only true until the question of “substantial infringement” upon religious belief/practice is brought into the mix and is determined to be relevant. At that point, the review standard changes, at least arguably, from “rational basis” to “compelling interest”, and the “least restrictive means” test comes into play.

          I’m not entirely sure whether a statute like Michigan’s changes much of anything — with or without the statute, the constitution forbids “substantial infringement” upon religious belief/practice without a “compelling interest” and use of the “least restrictive means”. But it does seem to me that statutes like Michigan’s proposed statute open a legal door and make a challenge more likely than not.

          I think that we are going to see a plethora of “religious freedom” laws enacted in the next few years, like weeds popping up in the Spring. I also think that a decade from now, law reviews will be full of articles discussing how the “religious freedom” laws are an example of the law of unintended consequences, much like the Blaine amendments of the late 19th Century.

  10. posted by Dale of the Desert on

    ” It isn’t helped when the secondary message is that we have no tolerance for religious dissension.”

    I, for one (and I suspect most gay people as well) have great tolerance for religious dissension. But I have no tolerance for religious discrimination. Believe whatever you choose about your religion, or about me, but if you make you living by providing public accommodations, don’t apply your religious beliefs to those accommodations, no matter whether your beliefs favor me or not. Just do your job and provide your promised service to all members of the public willing to pay you for them.

    • posted by Houndentenor on

      No one has more religious exceptions than the Christians in this country. They are exempt for all kinds of laws that affect everyone else, even non-religious nonprofit organizations. Their persecution claims are laughable to anyone who actually knows how things work.

  11. posted by Jorge on

    “I can only imagine the hurt and humiliation the couple felt when they were turned away, and I applaud them for not taking the insult quietly.”

    What a whiny, narcissistic society we have become.

  12. posted by Dale of the Deaert on

    What a callous, detached society we have become.

  13. posted by JohnInCA on

    Any argument against public accommodation laws that would support “Irish need not apply” signs or “Whites Only” swimming pools is pretty much a non-starter with me.

    If you pare it down to being just about “expressive services”, and it really would need to be such (so bakers and photographers? Sure whatever. The wedding venue? Not so much.) then I might agree if the proposed Discrimination-Ok-Go law would need to be issue/class/religion neutral.

  14. posted by Lori Heine on

    TJ III, there are many interesting ideas available online. I won’t make the mistake of providing links again, because this blog will keep me in Spam-filter Purgatory for two weeks. But Center for a Stateless Society, Rational Review, Out Right (LGBT) Libertarians, individual authors like Kevin Carson, Justin Raimondo, Thomas Knapp–I could go on, but that’s a start.

    And yes, Noam Chomsky. Bless his soul. He’s in a class by himself.

    There’s also a very strange website called Lew Rockwell.com. I say strange, because it’s a gleeful free-for-all of libertarianism ranging everywhere from the farthest reaches of right-wing whackoland (Pat Buchanan? Puh-leeze!) to some genuinely left-wing anarchist thinkers. It is indeed unusual, but there’s something to be said for the fact that libertarians from all across the spectrum can still peacefully meet and exchange ideas — while statists from differing factions carry on toward one another like barbarian hordes in full-scale pillage.

    • posted by Tom Jefferson III on

      –TJ III, there are many interesting ideas available online.

      Um. Yeah. However, the fact that the bulk of what passes for ‘libertarianism’ (in much of the media that supports and opposes it) comes from a particular set (with a particular set of ideas and values) is not really just a wild theory (like Big Foot hiding in the foothills and having an affair with The Mummy).

      Outright Libertarians — is one group that you cited. Well, they also take the position — standard Objectivist-Propertarian-Libertarian position that ALL private sector civil rights/public accomodation laws are bad. This is the basis position of the Libertarian Party (has been since its creation, but its been a bit more vague since 2000-ish).

      The essence of this particular brand of libertarianism — which tends to dominate — is that property rights are (more or less) ABSOLUTE. A private business or entity or club is (more or less) its own independent nation.

      Under such a theory — if the Libertarian Party swept to power — civil rights laws (as they apply to the private sector) would be seen as a violation of property rights. This is one of the results of treating property rights as absolute (along with what they talk about cough, cough, ‘voluntary and free association’)…..The Libertarian Left (i.e. Norm Chomsky, as a close, living approx) could not take the position that property rights are absolute.

      Personally, I think libertarianism is as nutty as communism (but I still know what each idea system stands for.

      Patrick Buchanan — an example you mentioned — would NEVER be called a libertarian. Left or right-wing. He is probably more of a paloeconservative-state’s rights-populist. But if you really want to claim him as part of your movement, I think I have a book of some of his quotes somewhere in my boyfriend’s office.

      • posted by Lori Heine on

        Wow, what a spinmeister you are, TJIII. I mention Buchanan’s appearance on a website I say is all over the place ideologically — and you spin this as me claiming he’s a libertarian.

        This is the “anyone who calls him/herself a libertarian must be one” school of spin. As if there were no definition, or as if it were unknowable.

        You don’t know what communism is? That’s okay, because you don’t know what libertarianism is, either.

        And “Norm” Chomsky. What can I say? If you can’t even spell his name right, I suppose it’s too much to expect that you’ve read anything he’s written.

        Property rights–dear–are more important to the poor than they are to the rich, because they’re what might safeguard their ability to own anything. The government does worse to the poor whatever it does to the wealthy. Therefore, every time you “progressives” come out, trumpets blazing, to take it to power, you always end up screwing those who can’t afford to get out of whatever you’re putting on them.

        Then again, “progressives” have always been about big corporate power. No reason they’d have any problem with that.

  15. posted by Lori Heine on

    Here’s a link to an article by Kevin Carson, indicative of the other side of libertarian thought:

    http://c4ss.org/content/34104

    The somber-faced toadies on Fox will never tell their viewers about this. The frustrating thing is that when we tell these things to “progressives,” too often we get told we’re craaaaazy. Exact reverses happen only in statist politics. And in the mirror.

  16. posted by Tom Jefferson III on

    Personally, I would — if I lived in Virginia or run the Equality Interest group — probably be more focused on say, the fact that the State doesn’t have equal opportunity (in things like employment and housing) in its civil rights code (or am I wrong about that?).

    But then again I suspect that a good number of people who (a) run successful interest groups or (b) bankroll them have probably have never to fret too much about paying rent or their car payment.

  17. posted by Tom Scharbach on

    A legal development in the 11th Circuit: Florida filed its expected petition to extend the federal stay on marriage equality beyond January 5. The stay was put into place by District Judge Robert Hinkle, who refused to extend the stay beyond that date. The 11th Circuit subsequently refused to extend the stay, and Florida has now petitioned the Supreme Court to do in this case what it has refused to do in other federal cases to date. The request goes initially to Justice Thomas, who can act alone or refer the petition to the full Court.

  18. posted by Mike Alexander on

    I find these lawsuits completely unnecessary and probably counterproductive. It’s not going to change the mind and heart of those who, for whatever reason, don’t wish to bake cakes for gay couples, and, frankly, it feels petty at this point.

    People are already changing their minds on this issue in favor of SSM. This is just suing someone for the sake of suing someone.

    • posted by JohnInCA on

      Really.

      Does that extend to someone denied service based on sex, religion or ethnicity? If not, why not? People are already changing their minds on these issues, so it’s just petty to sue someone for not serving you because your religion, skin color or sex, right?

      • posted by Mike Alexander on

        This, to me, just isn’t that simple. There was a time when I supported this type of lawsuit. The reason I don’t is because, unlike the civil rights violations of the 1950’s and 60’s, where it was common to deny blacks service, this is not a mainstream problem.

        There are very few bakers who will not bake a cake for a gay couples wedding. It’s not a common problem. Is being denied the option of getting a cake from one specific baker a violation of a civil right? That seems weird to me.

        For the sake of argument, let’s run with one of your scenarios…. The patrons who want to purchase a wedding cake, but are denied, are black instead of gay. Sure, they have a right to sue…. But should they??? We, as in gays, not dealing with the same situation that they were. If a gay person could go into that store and buy cupcakes, or other pastries…. But not be able to buy that one thing…. Wedding cakes… I’m not sure how I come down on that???

        I’ll go one step further….. If it were an inter-racial couple facing the same thing???? They could buy anything, but not wedding cakes for religious reasons????

        That would be wrong, just as this is wrong. But I’m not sure if a lawsuite is the right way to go in either case.

        • posted by JohnInCA on

          That’s a lot of equivocation for what was an easy question.

          To recap: As it stands today, in many parts of the US I can be fired, denied service, denied tenancy and so-on because of someone else’s religion, without recourse.

          In every part of the US if I fire, deny service, deny tenancy and so-on because of someone else’s religion, I can be sued.

          You think that neither of us should sue. But you’re okay with them having the right to sue me, and being able to choose not to, while I don’t get that option.

          Sounds fair, don’t it?

          • posted by Mike Alexander on

            “””To recap: As it stands today, in many parts of the US I can be fired, denied service, denied tenancy and so-on because of someone else’s religion, without recourse.”””

            If you are fired because you’re gay? I absolutely agree that you should sue if you can. THAT is the kind of case that will probably succeed in changing case law. THAT is what we should be focusing on. It’s much harder to make the same equivocal case concerning a wedding cake.

            We need to pick our batles wisley.

    • posted by Doug on

      I don’t give a rats ass about changing hearts or minds. If you are operating a business selling goods or services to the public then I expect to be served just like everyone else.

      I find it interesting that no one had any problem with public accommodation laws until they found out they had to serve LGBT folks. Pretty much shows who the bigots are.

      • posted by Tom Scharbach on

        I find it interesting that no one had any problem with public accommodation laws until they found out they had to serve LGBT folks. Pretty much shows who the bigots are.

        This has less to do with wide scale bigotry, I suspect, than it does with politics and artificially-created hysteria.

        Think back a decade to the national hysteria about same-sex marriage. Was the national hysteria to the effect that marriage equality would destroy marriage, family and the American Way of Life a ground-up hysteria or an induced hysteria, largely created by the anti-gay conservative Christian industry and aided and abetted by Republican politicians who played up to the crowd?

        Think back a decade earlier than that, to the days of Anita Bryant’s “Save Our Children” and John Brigg’s campaign to rid the public schools in California of gays and lesbians. Did that hysteria spring from ordinary people or was it ginned up?

        I’d say the latter in both cases.

        And I think that’s true of the current hysteria over so-called “religious freedom”. If you listen to the people who are pushing this issue, the rhetoric is over the top. Does any rational person believe that gays and lesbians are determined to put Christians in “boxcars”, as Tony Perkins loudly proclaims? Does any rational person really think that gays and lesbians are latter-day versions of Robspierre, determined to stamp out all opposition and bring back the guillotine, as Stephen repeatedly suggests?

        The uproar is induced, not natural. It is being pushed by Republican-aligned religious conservatives and so-called “libertarians”, who are united in a desperate attempt to find a formula that will allow the Republican Party to so silent on marriage as an issue but keep the base intact and enthusiastic. It is nothing more, and nothing less, that a replay of the earlier anti-gay crusades.

  19. posted by Opinion | Cutting holes in the law | Religious Freedom on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  20. posted by Cutting Holes in the Law | likev.net on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  21. posted by Cutting Holes in the Law — LiberalVoiceLiberalVoice — Your source for everything about liberals and progressives! — News and tweets about everything liberals and progressives on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  22. posted by Cutting Holes in the Law,PrideNation Magazine on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  23. posted by Cutting Holes in the Law | Pride & Equality Post on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  24. posted by Cutting Holes in the Law | AGReGate.info on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  25. posted by Cutting Holes in the Law - NEWS | Phones | Nigeria Science | Technology |Computers on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  26. posted by Cutting Holes in the Law | Political Ration on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  27. posted by Cutting Holes in the Law | Politics News Zone on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  28. posted by Cutting Holes in the Law | Omaha Sun Times on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  29. posted by Cutting Holes in the Law | So Stadium Status on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  30. posted by Cutting Holes in the Law - Jason Geldmacher on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  31. posted by Cutting Holes in the Law | CauseHub on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  32. posted by Squirrels Look Out For Flying Nuts and More Nuts and More Nuts… December 20, 2014 » Where the nuts chase the squirrels | Where the nuts chase the squirrels on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

  33. posted by Cutting Holes in the Law | Slantpoint Democrat on

    […] An upstate New York couple that rents facilities on their farm for weddings was fined $13,000 under the state’s Human Rights Law in August for turning away a lesbian couple. David Boaz of the Cato Institute tweeted sarcastically on Dec. 9, “Let’s go around fining everyone $13,000 to show the need for tolerance.” Stephen H. Miller of IGF CultureWatch criticized it as “payback.” […]

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