In the wake of the Supreme Court hearing oral arguments on same-sex marriage, Gov. Scott Walker, who seemed for a while to have accepted marriage equality in Wisconsin as the law so let’s move on, shifted ground and joined Ted Cruz in endorsing a constitutional amendment that would stop federal judges from finding a constitutional right to same-sex marriage.
“My hope is that the U.S. Supreme Court will [not rule in favor of same-sex marriage],” Walker said. “If they don’t, the only other viable option out there is to support a constitutional amendment which I would [support] believing not just in marriage being defined as one man, one woman, but I also believe in states rights. I believe that is an issue that appropriately belongs in the states.”
Endorsing amending the U.S. Constitution to stop marriage equality will put Walker beyond the political pale for center-right, libertarian-leaning Republicans and independents, without whom no Republican can win the general election. It’s not just morally wrong, it’s bad politics.
Progressives, however, are also expressing opprobrium toward Jeb Bush for noting concern that same-sex marriage might lead to forcing conservative clergy to perform same-sex marriages. Bush’s fear, dismissed flippantly by his critics, would have less credence if they hadn’t already been justified by a highly publicized instance of liberal officials trying to do this in the name of anti-discrimination (arguing that if ordained clergy run a wedding chapel instead of a church, they are subordinate to the state). That case fell apart, but not for want of trying.
And there was also this exchange during last week’s Supreme Court oral arguments, in which U.S. Solicitor General Donald Verrilli suggested that a private, religiously affiliated college could lose it’s tax-exempt status for not supporting same-sex marriage:
JUSTICE ALITO: Well,in the Bob Jones case, the Court held that a college was not entitled to tax¬exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
GENERALVERRILLI: You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.
As the Washington Blade reported, Bush also alluded to the cases of religiously conservative florists, caterers, and bakers being prosecuted for declining to provide services to same-sex weddings:
for Bush, finding “common ground” between opponents of same-sex marriage and gay and lesbian people seeking to marry is key. I think a country as open and big and tolerant and as this country ought to be able to find common ground on both of those fronts,” Bush said.
But the zealots of left and right won’t have any part of that.
More. From our comments, “Mary” writes, pertinently:
In all fairness, if 10 years ago someone had said that equal rights for gays would lead to a photographer being sued for not wanting to photograph a lesbian commitment ceremony wouldn’t you have called this a scare tactic? And when people argued that bakers, florists, and reception hall owners would have to cater to gay weddings or be sued for discrimination because “equal means equal” wasn’t it said that no one would be forced to have anything to do with gay weddings if they didn’t want to?
So why should we assume that tax exemption would never be removed from churches that don’t marry gay couples? Although I support SSM now, I do believe we need specific laws to protect religious freedom.
Indeed. And Hubert Humphrey famously said “I’ll eat my hat if this [the Civil Rights Act] leads to racial quotas.” One can today argue the merits of affirmative action race-based preferences and quotas, but they certainly did come about (with hard quotas, at least, subsequently scaled back by Supreme Court rulings).
24 Comments for “Marriage Amendment Is Wrong, Defending Religious Freedom Isn’t”
posted by Mark Peterson on
I realize that Stephen opposes public accommodations laws for sexual orientation, and believes that businesses should be free to refuse service to gay or lesbian customers based on moral disapproval. I wish he’d say whether he also opposes all public accommodations laws or just those for sexual orientation.
But I’m amazed to see him embrace the new Scalia-Jeb Bush meme that marriage threatens to force ministers to marry. Hundreds of thousands of gay and lesbian couples have been married in 37 states, and there hasn’t been a single lawsuit filed to force a minister to perform a ceremony. And as Stephen well knows, for the reasons explained by Justices Kagan and Breyer in oral argument, even if such a suit were filed, it would be tossed out of court immediately.
posted by Tom Scharbach on
Stephen frequently conflates distinctions, for whatever reason.
The question in the Hitching Post Lakeside Chapel controversy was whether a private, for-profit business was subject to local public accommodations laws. The government did not argue that clergy should be forced to perform marriages doctrinally, but whether a for-profit business is required to provide someone to perform such marriages. The same question was the crux of the Elvis Wedding Chapel controversy.
And, of course, Stephen “forgets” that no effort was made to enforce the public accommodations law in the Hitching Post Lakeside Chapel case; the lawsuit was brought by the owners of the business as a preemptive strike at the behest of an anti-equality legal organization that, eventually, reorganized the chapel as a not-for-profit after the necessary number of “liberals=totalitarian” points were scored in the conservative press.
posted by Mike in Houston on
Having basically lost all rational arguments, Stephen isn’t even trying anymore just stringing together non-sequiturs, debunked memes and acting like it’s more coherent than Sarah Palin’s word salads.
posted by Tom Scharbach on
No clergy will be forced to perform a marriage that offends the religious doctrine. In the entire history of our Constitutional republic, no Catholic priest has been forced to perform a remarriage after divorce, and no rabbi has been forced to marry a Jew and a Gentile. And none will be. An attempt by the government to force clergy to perform a religiously objectionable marriage will run into a brick wall in court.
But, I guess, in the conservative imagination anyway, same-sex marriage is different in kind than opposite-sex marriage, and the First Amendment will no longer apply when a clergy member refuses to marry gays and lesbians to each other. Go for it, Stephen.
As far as I am concerned, this is a humped-up issue, just another example of the seemlying unending game of leveraging fear and loathing of gays and lesbians for political gain, and deploying the “gays and lesbians are dangerous and un-American” messaging that excites the Republican base.
It is nonsense, and should be called out as such. Justice Scalia and Jeb Bush should know better. If calling them out is “opprobrium”, so be it.
posted by Houndentenor on
Both Scalia and Bush know better, and I have to assume that Stephen does as well. They think the general public will not. Fear-mongering is all they have left on the gay rights issue and they are pushing that fear-mongering as hard as they can. Shame on all of them, especially Stephen.
posted by Houndentenor on
No, ministers/priests/rabbis/imams/whoever cannot be forced to marry anyone. Many refuse to marry couples that don’t attend the required (by the denomination or local church) the required marriage counseling sessions beforehand. Others won’t perform interfaith marriages. If it were possible to force clergy to perform marriages they disapprove of, someone would have done so long ago. Not only would a gay couple not win a case in which they attempted to force a Southern Baptist preacher to marry them, it is unthinkable that any judge would even hear the case.
So yes, Stephen, it is in fact absurd as an argument and everyone knows this except the far right who are using it as a scare tactic, and even the “leaders” saying such things know it’s total crap but sadly a lot of Republicans do not. You should know better. I think on some level you do.
As for wedding chapels that are open to anyone who pays the fee, that is a public accommodation and if their only exclusion is gay couples they could have a legal problem. But a church that marries members or those affiliated with the church on some way (charging a fee or not) then no. Perhaps at some point the court will take up the issue of churches running for-profit businesses while claiming non-profit tax status and special rights that apply only to religions but not other non-profit or for-profit businesses. That does seem to be at the core of some of these issues.
Meanwhile, in Montana last month a pharmacist refused to fill a prescription citing religious reasons even though those reasons did not apply in that instance. (The woman had been given a drug to help recover from a miscarriage. The drug is sometimes also used to terminate pregnancies but only in combination with other drugs that had not been prescribed. Instead of the needed medicine, the woman was given a lecture by the self-righteous pharmacist. We do not owe strangers explanations of our medical situations, especially one so emotionally painful as a miscarriage. But that’s where these “religious freedom” laws are leading us. And again, everyone but the far right fringe understands this. They will one day when such laws come back to bite them in the ass. Sooner rather than later, I hope.
posted by Houndentenor on
Correction. The event described happened in Georgia not Montana.
http://www.wgxa.tv/news/local/Milledgeville-Pharmacist-Refuses-to-Fill-Prescription-for-Miscarriage-Patient-299421801.html
posted by JohnInCA on
As the Hobby Lobby case explained, being flat-out *wrong* about the scientific and medical science of an issue isn’t an argument against them claiming religious grounds.
posted by JohnInCA on
” they hadn’t already been justified by a highly publicized instance of liberal officials trying to do this in the name of anti-discrimination (arguing that if ordained clergy run a wedding chapel instead of a church, they are subordinate to the state). That case fell apart, but not for want of trying.”
That’s a damn lie and you should know it, Miller.
No one sued the chapel. The local government, when asked, said the law doesn’t apply to them. The only involved lawsuit was the chapel sueing the city to overturn the law *preemptively*. No case against the chapel “fell apart”, because no one ever started a case *to begin with*.
As for a university losing it’s tax-exempt status… I’m okay with that. Being tax-exempt is a priviledge, not a right. There are rules and limitations to qualify for them, and if someone oversteps their bounds then they *should* lose their tax-exempt status. That said, that’s not a *constitutional* issue, but a *legislative* one. If congress is really that worried about it, they can pass a law further defining/clarifying/whatever the rules for tax-exempt organizations.
I really don’t know why Scalia, Mr. Miller, or any of the other fear-mongers, are pretending that these issues are because of marriage equality and not because of legislative action. Wait, I do know why. Because they’re fear-mongers.
posted by Stuart on
I support a constitutional amendment to ban people from doing anything that annoys me. I want to refuse tax-exempt status to any group which I personally find irritating. I don’t want to live in a country where people are allowed to do things differently than I would do–and I’m sure God agrees with me.
posted by Mary on
In all fairness, if 10 years ago someone had said that equal rights for gays would lead to a photographer being sued for not wanting to photograph a lesbian commitment ceremony wouldn’t you have called this a scare tactic? And when people argued that bakers, florists, and reception hall owners would have to cater to gay weddings or be sued for discrimination because “equal means equal” wasn’t it said that no one would be forced to have anything to do with gay weddings if they didn’t want to?
So why should we assume that tax exemption would never be removed from churches that don’t marry gay couples? Although I support SSM now, I do believe we need specific laws to protect religious freedom.
posted by Tom Scharbach on
In all fairness, if 10 years ago someone had said that equal rights for gays would lead to a photographer being sued for not wanting to photograph a lesbian commitment ceremony wouldn’t you have called this a scare tactic? And when people argued that bakers, florists, and reception hall owners would have to cater to gay weddings or be sued for discrimination because “equal means equal” wasn’t it said that no one would be forced to have anything to do with gay weddings if they didn’t want to?
I don’t think that the implications of same-sex marriages and public accommodations laws were thought about much a decade ago, when a single state permitted same-sex marriage.
But if you asked the same question about the right of photographers, bakers, florists and reception hall owners to refuse services for interracial marriages, or interfaith marriages, or interdenominational marriages, or even second marriages after divorce, the answer then would be the same as that answer now — “Of course they can’t! Businesses should serve all and sundry.”
Nothing is really different about religious objection to same-sex marriage and those other kinds of marriages to which there might well be religious objection, except that (a) same-sex marriage is a fairly recent development, and (b) a large political-religious industry has been built up over the last decade to oppose same-sex marriage, a development absent in the case of interracial marriage, interfaith marriage, interdenominational marriage, and remarriage after divorce
I would guess that in states like Wisconsin, which has had a public accommodations law covering sexual orientation since 1982, a strong majority of the pubic has long since decided that gays and lesbians should be served by businesses on the same basis as anyone else — and that includes business services relating to weddings. In fact, even in states without public accommodations laws covering sexual orientation, a strong majority of people seem to think likewise.
So why should we assume that tax exemption would never be removed from churches that don’t marry gay couples?
Because it is a case of apples and oranges. Churches are protected by the First Amendment, and for-profit-businesses are not. Constitutionally, it is permissible to remove tax exempt status from all churches, but not some while granting tax exemptions to others. To specially privilege some churches but not others runs afoul of the “establishment” clause.
Although I support SSM now, I do believe we need specific laws to protect religious freedom.
I agree with you, as you know if you have been following the “religious freedom” threads on IGF over the past year or so.
But if we enact laws permitting religious objection to same-sex marriages, the laws should cover all marriages as to which there might be religious objection. To do otherwise sanctions special discrimination against gays and lesbians, and gays and lesbians alone, and grant privileged status to religious objection to same-sex marriage while denying the same status to religious objection to other forms of marriage that might be religiously objectionable.
Both are dangerous. If we single out gays and lesbians for special discrimination, the government is not granting gays and lesbians equal treatment under the law. If we single out religious objection to some marriages for protection, while denying protection for religious objection to other forms of marriage, the government is picking and choosing between religious objections, protecting some religious objections while denying protection to other, substantially identical, religious objections. In my view, anyway, picking and choosing between religious beliefs, protecting some but not protecting others, comes too close to the ban on “establishment” to be wise.
“Equal means equal” — the proposition that all citizens should be treated equally under the law — is not the enemy of religious freedom, so long as any laws we enact protecting religious freedom are religion-neutral, issue-neutral and class-neutral.
“Equal means equal” is the enemy, though, of both special discrimination (laws singling out gays and lesbians, and gays and lesbians alone) and special privilege (laws granting protected status to some religious beliefs while not granted protected status to other religious beliefs that are substantially similar.
posted by JohnInCA on
Actually, seeing as New Mexico’s An Act Relating to Human Rights went into effect in 2003, I think if someone who was actually up-to-date on what the state’s laws were and how non-discrimination laws work *would* have said “yeah, that’s not gonna work. We just passed a law specifically to say you can’t do that shit”.
There’s a reason that these cases consistently rule against the business. Because non-discrimination laws are well established in what they do and don’t permit. And when a state adds gay people to those non-discrimination laws they know what they’re doing. The only people surprised are the ones that seem to think that “because God” overrules civil law.
posted by Lori Heine on
As long as those laws define freedom of conscience broadly enough to apply to other religions–and even to other branches of Christianity–I’m fine with it. In fact, in some sense I think it’s a good idea.
Municipalities are now fining churches in cold climates for bringing homeless people inside their sanctuaries so they don’t freeze to the sidewalk. In other words, Christians are being punished, by government, for actually doing what Jesus told us to do. Feeding the hungry is also being prosecuted now in many locales.
I’d gladly trade not being able to get my wedding photos taken by absolutely any photographer in the world, or my cake made by any baker, for getting the government to stop persecuting me for practicing my faith.
posted by Tom Scharbach on
I am (perhaps understandably in light of the history of anti-Judaism embedded in Christianity and the history of intra-Christian persecution that caused minority Christians to emmigrate to the colonies and led to the First Amendment) cautious about giving Christians too much latitude to practice their faith without constraint. Christians, believing themselves called to convert the world, have a long history of sliding over the line from conversion to coercion.
The history of Christianity is not, in that respect, a good history, and each new wave of Christianity (the evangelical/fundamentalist expressions of the faith that drive the conservative Christian movement at present are roughly a century old) seems to quickly develop a form of religious amnesia about that history and cross the line from conversion to coercion.
Modern-day conservative Christians, with their talk about America as a “Christian country” and returning America to “Christian values”, seem to me to be ready to cross that line. I am particularly leery when I hear the talk about widespread “persecution” of Christians, as we hear today, because historically, whenever we have heard that talk, the fear behind the talk too often results in terrible acts.
It is for that reason that I am insistent on (1) religious neutrality in any RFRA, and (2) retaining the “substantial burden” part of the Sherbert test (substantial burden, compelling state interest, least restrictive means) in any RFRA.
I am, as those of you who have read my comments over the years know, a lawyer, and I take the time to read the proposed state-level RFRA laws and the legislative history of those laws as we discuss them, state by state.
Proponents of the current wave of state-level RFRA’s pay scant attention to religious neutrality, but instead focus on the supposed “persecution” of conservative Christian bakers, florists and photographers (for example, can anyone show a single instance where the proponents of such laws have discussed the applicability of Sharia law to the domestic relationships of Muslim families), and pay no attention at all to the “substantial” part of the “substantial burden” test (it seems to be assumed that baking a cake for a religiously objectionable wedding creates a “substantial burden” on the religious practice of the baker).
Neither is the case. The federal RFRA (as will the state-level RFRA’s, unless the wording substantially deviates) protects the religious practices of all faiths, not just Christianity. The federal RFRA (as will the state-level RFRA’s, unless the wording abandons “substantial”, which has happened in at least one case) require that the burden placed on the practice of faith be “substantial”.
Public accommodations laws have, so far anyway, survived Sherbert analysis because it is hard to argue, with a straight face, that baking a cake is places a “substantial burden” on the religious practice of the business owner baking the cake. Zoning and public health laws have, for the most part, survived Sherbert analysis because zoning and public safety laws do not “substantially burden” the Christian obligation to feed and house the poor.
Religious freedom does not, in a country like ours that is founded on using the common good as the basis for our laws, mean that religious adherents can do whatever they want, free from the constraints of laws of general application. Contraints are permitted — up to a line — and are necessary if we are to retain the common good as the basis of our laws.
posted by Lori Heine on
There is also the matter, however, of basic common decency.
If in Boston in the dead of winter, human beings are found frozen to death just outside the church doors because the city wouldn’t let the church save these people’s lives, I hope a few murder indictments end up getting handed down to the officials in charge.
There needs to be a vigorous debate about whether lining the pockets of public officials is more important than saving lives. Nor, last I checked, was this merely a Christian concern.
A great many of these laws are racist, and based upon nothing more than a desire for those in the “better” neighborhoods to keep the poor in “their place.”
posted by Tom Scharbach on
The power that we have in the imagination of conservatives never ceases to amaze me.
If Stephen is to be believed, we have the power to force the American people to abandon the First Amendment and force clergy, despite 200+ years of settled law, to perform marriages not permitted by their religious creed, no doubt as part of the reign of terror that we will institute as soon as we get our Robspierre costumes sorted out. If Huckabee is to be believed, we have the power to cut attendance at Christian churches in half in less than a decade, as if poor theology and poorer preaching can’t manage that on its own. If Perkins is to be believed, we have the power to convince the 85% of the American people who profess Christianity to put themselves into boxcars and ship themselves off to re-education camps, or worse, after we strip them of the ability to earn a living. Not to mention earthquakes, floods, hurricanes, tornadoes and worse.
Remarkable. If we weren’t Satanic, we would put some of that power to good use, instead of settling down, marrying and raising kids like the rest of America.
posted by Mike in Houston on
Tom — fear of the supposed unknown is all the Stephen and the core right-wing have left when it comes to LGBT issues.
I wonder what will happen, really, when the bubble bursts in June.
posted by Jim Michaud on
Chances are good they’ll go full bore cuckoo-for-coco-puffs. The reactions from the GOP candidates will be interesting. Bush has a chance in June to have his “Sister Souljah” moment. Will he take it?
posted by Jeff on
Krazee Republicans hate Hillary because she’s a WOMAN.
posted by Ricport on
So you’re voting for Hildebeast solely because she’s a woman, then?
posted by Lori Heine on
The silliness of the left-right statist game becomes more apparent, to discerning minds, all the time.
Now that conservatives are out of presidential power, they are capable of understanding–finally–that we are committing atrocities and war crimes in the Middle East: http://www.theamericanconservative.com/articles/obamas-unaccountable-drone-war/
But which TEAM are libertarians on? “Duh…TILT. Duh…TILT.”
Statists are too intellectually lazy to keep more than two concepts in their minds at a time. And even then, not unless the two are black-and-white, Simon-simple mirror images of one another. “Duh…war bad. Duh…war good. Duh…president bad. Duh…president good. Duh…Hillary woman.”
The debate on whether leaving “non” off of “nonviolent” is, or is not, a legitimate typo is stimulating. Anything more complicated than that…TILT.
posted by Tom Jefferson III on
1. I do not think that anyone — politics aside — who really knows about the complex issues at hand in cases such as this, really believes that religious freedom is a bad idea. Critics of “religious freedom” bills have valid concerns about the effect such bills will have on religious freedom (not to mention civil rights). Stephen seems content to keep repeating the same lie, in the hopes that people will eventually believe it by default.
2. The American libertarian movement has largely been taken over by the fringes of the far right; Ayn Rand fetishes, corporatist, state’s rights Biblical fundamentalists and paleo-conservatives. The fact that people are more likely to associate Paul Ryan with libertarian thought, then say Norm Chomsky is evidence on this.
Indeed. And Hubert Humphrey famously said “I’ll eat my hat if this [the Civil Rights Act] leads to racial quotas.”
posted by Lori Heine on
“The American libertarian movement has largely been taken over by the fringes of the far right…”
TJIII, I’m assuming you’re not a liar, so I’ll chalk your misconception up to ignorance.
That is simply not true. The American libertarian movement is growing broader and more varied. It’s growing more powerful, and a lot of different interests want a stake in it. Therefore, the wacky right will certainly have an oar in. They can hardly be expected not to.
MSNBC and its allies will certainly tell you that the entire libertarian movement is comprised of such people, or that they are more powerful in it than anyone else. That is nonsense on stilts. I continue to be surprised at how wide the libertarian movement is becoming, and how much variety is in it.
That the lie attempting to narrow libertarianism down to Ayn Rand fetishists and right-wing wackos continues to have legs is not surprising. The left is losing nearly as much support, now as the right. Of course MSNBC & Co are going to misdiagnose what’s happening. They want to stop the bleeding.
They will not.