LGBT Activists Take Aim at Religious Liberty

Rights are for me, but not for thee, says just about the entirety of LGBT activists groups.

Attacking religious liberty rights will be the singular issue of the LGBT left (which is to say, the LGBT political movement) going forward. The bogus “license to discriminate” meme will be ubiquitous.

As I’ve said before, balancing competing rights—civil rights (public accommodations nondiscrimination) and religious liberty (the right not to be forced by the state, on threat of punishment, to take action that violates religious convictions)—is what America should be about.

Religious exemptions have a traditional and purposeful place in our civil rights laws, but that’s now under attack. Shameful and sad.

More. Proving my point: Swift LGBT opposition to Gorsuch over ‘religious freedom’ rulings:

Gorsuch also sided with “religious freedom” arguments over the Affordable Care Act’s mandate that employers provide contraception coverage in the 10th Circuit ruling in the case of Little Sisters of the Poor Home for the Aged v. Burwell.

Rachel Tiven, CEO of Lambda Legal, declared opposition to the nominee based on Gorsuch’s “religious freedom” rulings, which she said marks the first time her organization opposed a Supreme Court nominee without any confirmation hearing.

Lambda Legal is going to show those nuns who’s boss.

60 Comments for “LGBT Activists Take Aim at Religious Liberty”

  1. posted by Tom Scharbach on

    Wait a minute? You are quoting tweets from yourself as authority? Weird.

    As I’ve said before, balancing competing rights—civil rights (public accommodations nondiscrimination) and religious liberty (the right not to be forced by the state, on threat of punishment, to take action that violates religious convictions)—is what America should be about.

    I assume you know about the Religious Freedom Restoration Act of 1993. To my mind, RFRA strikes the right balance.

    Religious exemptions have a traditional and purposeful place in our civil rights laws, but that’s now under attack. Shameful and sad.

    It is sad. And shameful.

    But the attack on religious freedom is not coming from gays and lesbians. It is coming from conservative Christians and their Republican allies determined to narrow religious exemptions to a small handful of specific objections.

    A draft Executive Order on religious freedom is circulating in Washington, and it has been posted online.

    The draft Executive Order identifies five fundamental beliefs of conservative Christianity deemed worthy of legal protection — objection to same-sex marriage, objection to premarital sex, objection to abortion, objection to contraception, and objection trans identity.

    No other moral or religious convictions are protected.

    When Congress enacted the Religious Freedom Restoration Act in 1993, responding to Justice Scalia’s Employment Division opinion severely restricting religious liberty, RFRA restored the Sherbert/Yoder test, protecting all religious beliefs, of all faiths, on an equal footing.

    The draft Executive Order singles out the enumerated five fundamentals of conservative Christianity for enhanced, special government protection, dismissing all other religious belief as unworthy of that protection.

    If that is your understanding of the proper balance of civil rights and religious freedom, I have two words for you: Shameful. Sad.

    Reply
  2. posted by JohnInCA on

    The non-discrimination laws being pushed by LGBT groups don’t treat LGBT folk as different then other protected classes.

    The religious liberty laws being pushed explicitly remove government protection from a class of people.

    You really want to characterize this as “rights are for me, but not for thee”?

    Reply
    • posted by Houndentenor on

      Here’s how it works in most states. If a business discriminates against gay people that is legal. If they discriminate against Christians (or any other religious people) they can get sued out of existence. So in a few places gays have the same rights as Christians and that’s what they are screaming about. If they want the right to discriminate then they should advocate for removing all nondiscrimination laws. I know some libertarians would like that but they are a tiny minority. They would hate being treated like they treat gay people. Having to serve customers you don’t like? It’s called running a business. There is no problem except that some people don’t feel righteous except when they are treating other people like shit.

      Reply
    • posted by Tom Scharbach on

      Religious exemption from non-existent nondiscrimination laws must be important, though, else why would Republican legislators in the 30-odd states that do not cover gays and lesbians in public accommodations laws be doggedly introduce religious exemption bills year after year?

      Sooner or later this charade will end, but not until the fever has run its course.

      Reply
  3. posted by Lori Heine on

    Trump is beginning to reveal himself as a warmonger, just like Bush and Obama. He is already conflating ISIS atrocities in the Middle East with threats to religious freedom here. The entire subject of religious freedom is of no interest to Republicans unless it involves making war or discriminating against gays.

    I advocate for an expanded discussion on the issue of religious freedom. That must include, however, calling out the social right on its obsession over baking cakes. Both the statist right and left would shut down all discussion on religious freedom.

    Moronically parroting the GOP’s official line of bull on the issue does a disservice to people of faith in this country. It’s dishonest, and it needs to stop.

    Reply
  4. posted by Jorge on

    Wait a minute? You are quoting tweets from yourself as authority? Weird.

    The tweet seems to be dated today. I think it’s something else that’s weird.

    The draft Executive Order identifies five fundamental beliefs of conservative Christianity deemed worthy of legal protection — objection to same-sex marriage, objection to premarital sex, objection to abortion, objection to contraception, and objection trans identity.

    I could defend that kind of boldness, but I think it’s beneath the offices sworn to defend the Constitution to single out a subset of lesser rights.

    “Attacking religious liberty rights will be the singular issue of the LGBT left (which is to say, the LGBT political movement) going forward. The bogus “license to discriminate” meme will be ubiquitous.”

    That’s a mistake.

    If the LGBT political movement overreaches, it will lose political clout when the right defeats it.

    Had Trump issued an executive order overturning the Obama executive order, it would have been almost impossible to catch the LGBT left in the act of overreaching. The current conditions would make it almost impossible not to.

    I’d be careful of all this chatter about the executive order. It may be a plot by the Pence/Bannon hybrids (they must be in the Trump administration somewhere) to bait a premature overreaction by the LGBT left. I’d urge caution by the LGBT left. If such a plot is successful, it may also force the President to take a hard line against it. The LGBT right to get out of the White House and back onto the street with the regular people, make it impossible for Trump to ignore you, prevent him from thinking that gay begins and ends with liberal.

    Reply
    • posted by JohnInCA on

      Really? “Best not say anything, lest you rock the boat!”

      How has that worked out for the “LGBT right” so far? If anyone thinks that “gay begins and ends with liberal”, it’s because conservative LGBT folks are allergic to actually talking to conservatives.

      Reply
      • posted by Jorge on

        I’m not saying don’t say anything. I’m saying don’t be baited. Act, don’t react.

        There’s an interesting Op-Ed in today’s NY Daily News that argues that the Walker administration won its political battles and achieved electoral success in the legislature by studying the left and intentionally inciting it, so as to draw out ineffective and wasteful actions. It also argues that the Trump administration is trying to do the same thing.

        We’re all so focused on what it is the anti gay rights movement right wants, that we lose sight of what it is that we want. But as the saying goes, if you stand for nothing, you will fall for everything.

        Reply
        • posted by Houndentenor on

          You have a point. There’s no reason to react to a rumor that there might be an executive order. Then when that EO never appears the right acts like it was a victory of some kind. Meanwhile we were distracted from something else important. That said, I think the right wrongly believes that the protests will die down quickly like Occupy Wall Street did or the protests after W’s “election” in 2000. That doesn’t seem to be happening. People are actually growing increasingly angry and impatient with the Trump administration so the crowds will likely just get bigger. But I agree that we should wait until there’s actually something to protest like detaining people with green cards all day at JFK.

          Reply
        • posted by JohnInCA on

          “I’m not saying don’t say anything. I’m saying don’t be baited. Act, don’t react.”
          The narrative around Obama’s EO is that the admin was going to rescind it, but that the reaction from the leak, including a “last minute save” from LCR, persuaded them not to do so.

          So again… your proposed strategy lacks validation.

          Reply
          • posted by Jorge on

            Had Trump issued an executive order overturning the Obama executive order, it would have been almost impossible to catch the LGBT left in the act of overreaching. The current conditions would make it almost impossible not to.

          • posted by JohnInCA on

            So in your mind, we can only take action *after* we’re bloodied?

            Yeah, I can’t imagine why that’s convincing approximately no one.

          • posted by Tom Scharbach on

            So in [Jorge’s] your mind, we can only take action *after* we’re bloodied?

            Apparently, in Jorge’s mind, the best way to keep a train from getting to the station is to start working at it after the train’s arrived.

      • posted by Tom Scharbach on

        There’s no reason to react to a rumor that there might be an executive order.

        I disagree.

        While it is always possible that we will get “played”, as Lori put it, what would have happened if the Congressional LGBTQ Caucus had not put a shot across the bow with respect to White House leaks about the draft EO rescinding Executive Order 13672?

        And, with respect to the draft EO on “religious liberty”, a draft is circulating on the Hill and a copy of the draft was leaked. If we remain silent, what happens?

        Then when that EO never appears the right acts like it was a victory of some kind.

        Who cares?

        Reply
    • posted by Tom Scharbach on

      We’re all so focused on what it is the anti gay rights movement right wants, that we lose sight of what it is that we want.

      Political movements (the 40-year push for “equal means equal”) have to respond to the political environment, sometimes focusing on moving forward and sometimes focusing on fighting off attacks. It is part of the ebb and flow of politics.

      We focused on obtaining marriage equality for a decade. We reached the goal, despite (or perhaps because) of a hard anti-marriage pushback from conservatives after Goodridge.

      During the push for marriage equality, we were pushing for our goals.

      Now we are in a period of “massive resistance”, a time when conservatives are working to limit/abrogate marriage equality by chipping around the edges, just as segregationists tried to blunt Brown v. Board 50 years ago.

      We are in a period where we have to fight off the attacks in order to keep marriage equality.

      Fighting back is harder, because it forces us to pay attention to what the forces of inequality are doing, and find strategies to blunt the attack, reacting more often than acting.

      The task is made harder still because attacks on equality use misdirection (e.g. hiding raw discrimination under the rubric of “religious freedom”) frequently and often effectively.

      JohninCA stated the nub well, I think:

      The non-discrimination laws being pushed by LGBT groups don’t treat LGBT folk as different then other protected classes. The religious liberty laws being pushed explicitly remove government protection from a class of people.

      But John’s statement isn’t catchy. The first sentence is relatively straightforward, but the understanding the second sentence requires thought (and knowledge about the content of the “religious liberty” laws, which is carefully hidden by out-facing communications to the public) in order to be effective.

      I wonder what a good marketing person would do, what catch-phrase would be effective to communicate that all we want is to be treated like everyone else.

      I’ve used “equal means equal” as my personal catch-phrase for many years, because it focuses on law, but we learned from experience during the fight for marriage equality that neither “Equal Marriage Rights” nor “Freedom to Marry” moved the needle. Eventually that marketers came up with “Love is Love”, and that got straight people thinking, built on the attitudinal changes we achieved by coming out in droves, and it worked to move the needle strongly in our direction.

      We need something like that now, something that lays bare the craven hypocrisy of conservatives who are hiding raw discrimination under the rubric of “religious freedom”, and something that conveys our goal — to be treated just like everyone else — in the “religious liberty” fight. My guess is that we’ll find a way to communicate both, in time, but it is going to take some trial and error.

      Reply
      • posted by Jorge on

        Fighting back is harder, because it forces us to pay attention to what the forces of inequality are doing, and find strategies to blunt the attack, reacting more often than acting.

        Defense is harder than offense?

        Sorry, I don’t agree.

        Reply
      • posted by Tom Scharbach on

        Tom: Fighting back is harder, because it forces us to pay attention to what the forces of inequality are doing, and find strategies to blunt the attack, reacting more often than acting.

        Jorge: Defense is harder than offense? Sorry, I don’t agree.

        In beanbag, maybe not. But politics ain’t beanbag.

        Reply
  5. posted by Lori Heine on

    “We’re all so focused on what it is the anti gay rights movement right wants, that we lose sight of what it is that we want. But as the saying goes, if you stand for nothing, you will fall for everything.”

    That says it all. Our “community” is getting jerked. It’s being played. And I can’t believe how easily.

    And the poor little droids keep saying, “Duhhhh…Trump is so dumb.” As they pathetically beclown themselves, again and again.

    He knows exactly what he’s doing. They’re damned fools.

    Reply
    • posted by Jorge on

      He knows exactly what he’s doing. They’re damned fools.

      Maybe. There’s another article out there that talks about Steve Bannon’s love of Sun Tzu’s writings on warfare, many of which advocate deception and confusion. The article remarked on how similar the Trump administration’s tactics are even if they’re unintentional.

      I for one am not always deliberate at the moment. One of the things I sometimes do in workplace politics is adopt a focus on the present without doing a great deal to resist changes in my mood and morale. This has the effect of making my loyalties sensitive to the way I am currently being treated without requiring me to engage in any deception about them.

      Reply
  6. posted by Tom Scharbach on

    An interesting take on Executive Order 13762’s survival.

    Reply
    • posted by Jorge on

      What’s this? The religious right isn’t “angry?” I was led to believe by internet headlines that they “must surely” be “upset” or angry. Instead, I see they’re still confident. Do they really think the homocons are still in their corner?

      “Perkins said that Vice President Mike Pence has been involved and is “clearly sensitive to this.”

      “There are some in Trump’s family that have some views on these things,” said a source close to the discussions. “That’s where the decision is ultimately being made.””

      Ah, the typical Washington game of claiming more influence and connections than you truly have. Score one point for government by Barron beginning to make sense. Beware, America! The fate of the world depends on the state of President Trump’s digestion. And he has more control over it than anyone realizes–he knows how to put together an inner circle that channels his success.

      Reply
  7. posted by Tom Scharbach on

    Lambda Legal is going to show those nuns who’s boss.

    Bitter, are we?

    Reply
  8. posted by Tom Scharbach on

    Beware, America! The fate of the world depends on the state of President Trump’s digestion.

    I don’t know about President Trump’s digestion, but a lot depends on a president’s stability, sober judgment, clear-headedness and forbearance in the face provocation.

    You might want to read a history of the Cuban Missile crisis and reflect on what might have happened had not either President Kennedy and Secretary Khrushchev had reacted less soberly.

    We came very close.

    Reply
  9. posted by Jorge on

    Lambda Legal is going to show those nuns who’s boss.

    What’s this? The Republican party is using nuns as human shields in its war on change?

    That’s a good move.

    The anti-Trump movement needs to come up with equally skilled formations for factions and representatives if it’s to win.

    Reply
    • posted by Tom Scharbach on

      What’s this? The Republican party is using nuns as human shields in its war on change?

      The Supreme Court vacated the 10th Circuit ruling in Little Sisters of the Poor Home for the Aged v. Burwell and remanded the case (along with nine other similar cases) for further proceedings consistent with the Supreme Court’s per curiam opinion.

      I think that Lambda’s concern is that Judge Gorsuch’s opinion was to the right of where the Supreme Court appeared to be on the issue, but he will be confirmed in time and the issue will be resolved sooner or later.

      Reply
  10. posted by Tom Scharbach on

    On a side note, the US edition of the Guardian (in an article about today’s planned protest at the Stonewall Inn) quoted LCR head Gregory Angelo on the leaked “religious freedom” draft Executive Order: “Angelo said, however, that should the leaked draft order end up being signed by Trump: “We will certainly speak out against that.”

    I hope that Angelo is using his contacts and influence at the White House to keep the damn thing from being issued in the first place.

    Reply
  11. posted by Lori Heine on

    I will reiterate that the conversation about religious freedom needs to be expanded upon–not squelched.

    There’s nothing wrong with the fact that the political Right has brought up the issue. The problem is that so many conservatives are trying to limit its focus to the very few things they care about.

    Government at various levels has indeed made war on religious freedom. We see this every time volunteers are led away in handcuffs because they were feeding the hungry, or churches fined for sheltering the homeless to keep them from freezing to death in winter.

    If the social Right is permitted to box the discussion into the narrow parameters it wants to use, real religious freedom in this country will be totally gone. And the Left–it its childish overreaction against everything the Right does–will be perfectly happy to watch the churches prohibited from doing what Christ has expressly commanded them to do.

    Reply
    • posted by Tom Scharbach on

      I will reiterate that the conversation about religious freedom needs to be expanded upon– not squelched.

      We’ve discussed this in the past, and we agree.

      The Court’s 1963 opinion in Sherbert and 1972 decision in Yoder, which required the government to show a “compelling interest” and the “least restrictive means” for any law that placed a “substantial burden” on religious exercise, was a step in the right direction.

      Justice Scalia’s 1990 opinion in Employment Division, which sharply curtailed religious exemption when a law of general application was involved, was a step in the wrong direction.

      The Religious Freedom Restoration Act of 1993, which restored the Sherbert/Yoder test to laws of general application, local, state and federal, as well as targeted laws, was a step in the right direction.

      The Court’s 1997 decision in Boerne, which declared RFRA inapplicable to local and state laws, was a step in the wrong direction.

      We need to get back to the point where Sherbert/Yoder is the law of the land, applicable to all laws, state, local and federal, both targeted laws and laws of general application.

      I think, though, that we’ve reached the point where the right’s attempts to grant super-status to a few issues has poisoned the water, making a general discussion of religious freedom next to impossible to conduct right now.

      The right’s attempts need to be blunted, and the public given time to calm down, before the discussion can be expanded again, and reason prevail.

      I think that the present situation is intolerable, and the situation is particularly difficult for those of us from minority religions, religions that seem to me to be coming under attack as the conservative Christian juggernaut steams onward in its quest to box religious freedom into its own narrow mindset.

      Intolerable situation or not, though, all those of us who care about religious freedom can do is try to blunt the juggernaut, working for the day when the discussion can once again be expanded. All of my comments on this blog have been aimed at those two ends.

      Like you, Lori, I’m going to keep at it, and keep at it, and keep at it.

      Reply
      • posted by Lori Heine on

        I think there may need to be a pause in the dialogue in order to let the dust settle.

        I’m now dividing my time between two different churches. I got involved with the second one because though it belongs to a denomination that welcomes LGBT’s — the Evangelical Lutheran Church in America — that specific congregation is centrist, and panders neither to the Left nor the Right.

        Politics are poisoning the well right now. I don’t want to go to a church that leans too far toward either side. It may be the same for synagogues. I have a very leftist friend who goes to a liberal temple, and another who’s quite conservative and attends at a more conservative one.

        A couple of weeks ago, at the Lutheran church, they got into this lame-brained discussion about “baking cakes.” I was going to just keep quiet, but I couldn’t resist getting into it. I told them that this is an artificially-contrived issue, because most of us don’t want people who hate us to bake our cakes. But at the present time, you’re right that people are so focused on that sort of thing that they probably aren’t ready to think about much else.

        Reply
    • posted by Tom Scharbach on

      I think there may need to be a pause in the dialogue in order to let the dust settle.

      I think the fever will run its course in another 3-5 years. The pace of attack seems to be slowing down (300+ bills in 2015, 200+ in 2016, only 40 so far this year, with more to come, to be sure, but probably less than last year overall). As the pace of attack slows down, the reaction will be reduced.

      The tragedy of this is that the rhetoric of conservative Christians surrounding the bills that have been introduced has so closely tied religious freedom to anti-marriage, anti-equality and anti-gay that ordinary citizens have come to see the two as equivalent.

      Until the fever passes, and things calm down, even reasonable, broad-scope religious freedom laws meeting the “religion-neutral, issue-neutral, class-neutral” test (for example, cloning the federal RFRA) that might be proposed will be perceived as anti-marriage, anti-equality and anti-gay. That’s the poison that has been put into the system.

      Both sides of the issue are responsible.

      Conservatives (and I intentionally expand the scope beyond conservative Christians, and I point to Stephen as an example) have masked the intent and language of the proposed bills in two ways: (1) refused to acknowledge that the operative language of the bills are, more often than not, narrow-scope and targeted at gays and lesbians, and gays and lesbians alone, and (2) used the hapless “bakers, florists and photographers” (and almost no other examples) as a mantra to the extent that ordinary citizens have concluded, right, wrong or indifferent, that the push for such laws is all about “the gays”.

      Left/liberals have, similarly, failed to make a distinction between overwhelming majority of “religious freedom” bills targeted at authorizing government-sanctioned discrimination against gays and lesbians and the handful of reasonable, broad-scope religious freedom bills that meet the “religion-neutral, issue-neutral, class-neutral” test, painting them all with the same brush.

      The result is that any religious freedom bills is tainted from the get-go.

      We will need this to end before we can have a serious discussion. It will end, because the fever is running its course. But it will take some time, I think.

      An old adage reminds us to remember that “this too shall pass”, that fevers come and go. I remind myself that even in the midst of the fever, the fever is in the process of passing.

      Reply
  12. posted by Tom Scharbach on

    Virginia’s legislature provided us with an example of the way in which conservative Christians and their Republican allies have poisoned the well for religious freedom.

    Consder the operative words of two proposed bills, one broad-scope and the other narrow-scope:

    BROAD-SCOPE VERSION:

    No person shall be:
    1. Required to participate in the solemnization of any marriage; or
    2. Subject to any penalty by the Commonwealth, or its political subdivisions or representatives or agents,
    solely on account of such person’s belief, speech, or action objecting to such marriage in accordance with a sincerely held religious belief or moral conviction.

    NARROW-SCOPE VERSION:

    No person shall be:
    1. Required to participate in the solemnization of any marriage; or
    2. Subject to any penalty by the Commonwealth, or its political subdivisions or representatives or agents,
    solely on account of such person’s belief, speech, or action in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman

    I don’t suppose that I have to tell you which version was introduced in and passed the Republican-controlled Virginia House of Delegates on a party line vote of 57-37 last week.

    The end result? If you are a conservative Christian with religious objection to same-sex marriage, you’re in luck. If you are a Catholic with religious objection to remarriage after divorce, fuck you.

    Anyone still wondering how conservative Christians and their Republican allies have poisoned the religious freedom well?

    Reply
  13. posted by Jorge on

    The end result? If you are a conservative Christian with religious objection to same-sex marriage, you’re in luck. If you are a Catholic with religious objection to remarriage after divorce, fuck you.

    Anyone still wondering how conservative Christians and their Republican allies have poisoned the religious freedom well?

    Sorry, I still blame Obergefell for ordering the state governments to comply with one religious preference over another in the first place.

    Until and unless it is either overturned or we reach the point where its result is universally supported, I see no alternative but to keep repairing the distinctions. So long as Christianity is the primary religion that is under attack by one branch of the government, other branches should take measures provide a defense. This is required by the legislators’ oath of office to support and uphold the Constitution of the United States.

    I might be willing to change my position if other activists dropped their advocacy for reparations to African American descendants of slaves and other single race-specific laws.

    Reply
    • posted by Tom Scharbach on

      “Rights are for me, but not for thee,” sayeth Jorge to Catholics.

      Reply
      • posted by Jorge on

        “Rights are for me, but not for thee,” sayeth Jorge to Catholics.

        I think it’s time for my favorite citation.

        Show me which theological treatise in the Congregation of the Doctrine of the Faith, sermon, or any other Catholic religious instruction contains these words about divorce after remarriage:

        “In those situations where [insert category here] unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.”

        Reply
      • posted by Jorge on

        …about divorce after remarriage:

        *ahem.* Remarriage after divorce.

        Reply
        • posted by Tom Scharbach on

          I believe everybody has the right to a conscientious religious objection ….

          You certainly don’t let that play out in your positions on conscientious objection to marriage. Instead, your wiggle around trying to find reasons what conscientious objection to same-sex marriage should be given special sanction by our laws, sanction not given to conscientious objection to remarriage after divorce and interracial marriage, to reference the cases in point.

          I have made repeatedly clear over the years by insisting that the Sherbert/Yoder test (“substantial burden”, “compelling state interest”, “least restrictive means”) should apply to all laws, state, local and federal, targeted and of general application, and I would broaden Sherbert/Yoder in include conscientious objection that is not tied to religion – moral conscience.

          But that is a personal preference, my personal opinion.

          On that score, the Constitution requires (according to the opinion in Employment Division and Boerne) only that the government have a “rational basis” for laws of general application in order to curtail the right to act on a conscientious objection.

          However, regardless of the standard applied, the laws of the United States must conform to the Equal Protection clause. For that reason, as and to the extent out laws recognize conscientious objection to same-sex marriage, our laws should also recognize conscientious objection to remarriage after divorce, to interracial marriage, to inter-religion and inter-denominational marriage, and so on — religion-neutral, issue-neutral, class-neutral and all of that.

          You and others who are “socially conservative”, in order to give special sanction to conscientious objection to same-sex marriage, are trying very hard to distinguish between conscientious objection to same-same marriage and conscientious objection to other marriages that are or might be religiously objectionable.

          You are falling flat on your faces, because your attempts to distinguish are improbable, to say the least.

          Your latest attempts as an example. Alt-facts may drive the Executive Branch, but the Judicial Branch looks at real facts.

          BTW, just for the record, I reject the idea that Catholic teaching — or the teaching of any other religion — is a legitimate a basis for the laws of the United States. What the Catholic Church teaches on the issue is as irrelevant to secular law as whatever it is the Muslims might teach on the matter.

          Reply
      • posted by Tom Scharbach on

        ou might want to look at the comments Pope John Paul II to the Tribunal of the Roman Rota, 28 January 2002, n9. John Paul has a great deal to teach about about the necessity of avoiding any cooperation with divorce and remarriage.

        The Church, for those of you not limited to Mother Angelica’s Catholicism, also teaches “A human being must always obey the certain judgment of his conscience. If he were deliberately to act against it, he would condemn himself.” and that

        Reply
        • posted by Jorge on

          I suppose Benedict’s fearsome reputation as “God’s Rotweiller” could be the entire difference in substance and tone between the two. I notice that here John Paul takes pains to note that judges do not have the option of conscientious objection, but he wants the law changed. Benedict on the other hand believes one always has the right to conscientious objection.

          I have to wonder at your decision to include the second quote, which is 1) right on the money, and 2) a nice sock to John-Benedict’s collective kisser. I’m always willing to say no to the Pope, to the ends of the earth. So now we come full circle: the Catholics have largely chosen to use their “conscience” to ignore both gay marriage and remarriage after divorce. The everybody else Christians have taken up the sword and shield only on gay marriage–and they don’t share the same distaste toward divorce Catholics do.

          I believe everybody has the right to a conscientious religious objection, and I expect my elected officials to uphold their oath of office to defend that right. It would also have been very nice if instead of throwing Kim Davids, husband-hopper, the Christian Martyr, “your better, *****!”, in jail, the courts and the plaintiffs would have led her by the hand and rewritten the marriage certificate form themselves.

          Reply
    • posted by Tom Scharbach on

      If I understand your criteria for special, enhanced marriage-related religious protection correctly:

      (1) the need for protection must stem from a Supreme Court decision;
      (2) the decision must “order the state governments to comply with one religious preference over another”, that is to require state governments to perform marriages that are accepted by some religions but not others;
      (3) the decision must be objectionable to the belief of Christians or a subset of Christians; and
      (4) the decision must not yet be “universally supported” by Americans.

      Obergefell meets those criteria, as you point out.

      But consider another case, decided in 1967, Loving v. Virginia, which ruled that state bans on interracial marriage were unconstitutional.

      At the time Loving was decided, 72% of Americans opposed interracial marriage, and 48% favored criminal penalties for interracial couples that married. Recent polls show significantly lessened levels of opposition (about 10% nationwide — less than 5% among African-American Christians, just over 5% among non-religious citizens, about 15% among white mainline Christians and 20% among white conservative Christians), but it cannot be said that we have “reach[ed] the point where [Lovings] result is universally supported”.

      The opposition, historically and at present, is religious in nature, as indicated by the statistics noted above. Religious opposition to interracial marriage , although a minority view among Christians, remains intact in current times (see, for example, “On Interracial Marriage: The Moral Status of Miscegenation”, Faith & Heritage, May 5, 2011), and opposition to interracial marriage is strongest (close to 20% opposed) among conservative Christians (see “Opposition to Interracial Marriage Lingers Among Evangelicals”, Christianity Today, June 24, 2010).

      So let’s run interracial marriage through your criteria for enhanced marriage-related religious protection:

      (1) the need for protection stems from a 1967 Supreme Court decision, Loving v. Virginia;
      (2) the decision “order[ed] the state governments to comply with one religious preference over another”, that is to require state governments to perform marriages that are accepted by some religions but not others;
      (3) the decision was and remains objectionable to the belief of Christians or a subset of Christians; and
      (4) the decision is not yet be “universally supported” by Americans, and particularly Christians.

      Is that correct? If not, what is the difference between Obergefell and Loving in terms of your criteria?

      And if the criteria sufficiently match, does this statement:

      Until and unless it is either overturned or we reach the point where its result is universally supported, I see no alternative but to keep repairing the distinctions. So long as Christianity is the primary religion that is under attack by one branch of the government, other branches should take measures provide a defense. This is required by the legislators’ oath of office to support and uphold the Constitution of the United States.

      apply to interracial marriage, based on your criteria?

      I assume, based on your criteria, that you would have no objection to modifying the Virginia bill to include religious objection to interracial marriage, that is to add the words “of the same race”, as follows:

      No person shall be:
      1. Required to participate in the solemnization of any marriage; or
      2. Subject to any penalty by the Commonwealth, or its political subdivisions or representatives or agents, solely on account of such person’s belief, speech, or action in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman of the same race.

      Is that so?

      Reply
      • posted by Jorge on

        If I understand your criteria for special, enhanced marriage-related religious protection correctly:

        (1) the need for protection must stem from a Supreme Court decision;

        There’s nothing special about Supreme Court decisions. Just because Roe v. Wade made the country go KABOOM! (wait, that might not be appreciated by pro-choice women), and just because Roe was a Supreme Court decision, does not mean only Supreme Court-caused chaos merits a response.

        The Obergefell decision was wrongly decided. It was not the correct decision constitutionally. I am concerned that it is having ripple effects that are direct violations of the First Amendment protections against the establishment of a government religion and against restrictions on the free exercise of religion.

        I expect my elected officials to uphold their oath of office to support and defend the Constitution of the United States, even if that means the source of the attack on our Constitution is the US Supreme Court.

        Mike Huckabee linked hands with Kim Davis, thrice divorced mom, and Christian Martyr, b****!

        President Trump has nominated an Antonin Scalia clone to the US Supreme Court.

        The Trump administration is also exploring adding religious objection exceptions to the Obama administration executive order prohibiting discrimination on the basis of sexual orientation and gender identity by contractors doing business with the federal government.

        The Trump card gets played early: Donald Trump has vowed to support a repeal of the law that prohibits political campaigning by tax-exempt churches.

        Is that clearer?

        (2) the decision must “order the state governments to comply with one religious preference over another”, that is to require state governments to perform marriages that are accepted by some religions but not others

        No.

        The constitutional infringement in question is any decision that itself adopts one religious interpretation over another in making a decision about the government shall do or be ordered to do.

        (3) the decision must be objectionable to the belief of Christians or a subset of Christians; and

        That is irrelevant.

        You are getting this so twisted I see no further need for discussion.

        Reply
        • posted by Tom Scharbach on

          You are avoiding your own argument.

          Reply
          • posted by Jorge on

            Tom, don’t bother to ask if you understand me correct if, when I tell you that you don’t, you’re not willing to correct yourself.

            Given your legal background, I think you know that it is unwise to proceed on assumptions.

        • posted by Tom Scharbach on

          I’m proceeding from the word you wrote. Whether the words you wrote have anything at all to do with your thinking, I have no idea.

          Reply
        • posted by Tom Scharbach on

          Given your legal background, I think you know that it is unwise to proceed on assumptions.

          I asked the question to avoid an assumption.

          But on to the rest of your comment:

          Is that clearer?

          Not at all.

          Why are you willing to grant a religious exemption to nondiscrimination laws for religious objection to same-sex marriage but not grant a religious exemption for religious objection to interracial marriage, or remarriage after divorce?

          Reply
      • posted by Jorge on

        But consider another case, decided in 1967, Loving v. Virginia, which ruled that state bans on interracial marriage were unconstitutional.

        My longstanding position on Loving is that because it involved a criminal prosecution, it is comparable to Lawrence v. Texas, and irrelevant to Obergefell. There is a considerable difference between a law that bans marriage by imprisoning the people who get married, and one that denies the legal recognition of marriage by doing absolutely nothing when the couple asks for a marriage license. I find the LGBT’s continued fixation on marriage as a state that only exists if an outside party tells them it exists to be unhealthy and needlessly intrusive on people who should be left alone.

        Reply
        • posted by Tom Scharbach on

          My longstanding position on Loving is that because it involved a criminal prosecution, it is comparable to Lawrence v. Texas, and irrelevant to Obergefell.

          Until the 7th Circuit ruled that Wisconsin’s anti-marriage amendment was unconstitutional, same-sex couples who married outside the state (as Michael and I did in Minnesota) were guilty of a crime punishable by nine months in jail and a $10,000 fine. As I understand it, quite a number of states had similar laws.

          That precisely fits the Loving facts (the Lovings were prosecuted for marrying outside the Commonwealth).

          So yet again, you are avoiding the consequences of your own argument by twisting facts and backflip logic.

          Reply
          • posted by Jorge on

            I do not remember that being the law that was being discussed in Kennedy’s opinion. I’m twisting facts? Really, now.

        • posted by Tom Scharbach on

          I do not remember that being the law that was being discussed in Kennedy’s opinion. I’m twisting facts? Really, now.

          I’m twisting nothing. Fear of prosecution was an issue in the case that went to the 7th Circuit from Wisconsin. Appeal from the 7th Circuit opinion in that case was denied cert by the Supreme Court about nine months before Obergefell was decided.

          Whether or not the issue was discussed in Obergefell, the fact remains that many states have laws prohibiting citizens of a the state from going to another state to contract a marriage that is not legal in the citizens’ state.

          On this issue — scampering around trying to find a reason why Obergefell can be distinguished from Loving and other marriage cases — you are becoming increasingly unmoored from the factual similarities.

          Reply
          • posted by Jorge on

            That was a very good explanation of how you were indeed twisting facts, and a very poor explanation for how my maintaining a consistent position on an issue becomes increasingly unmoored from factual realities.

  14. posted by Tom Scharbach on

    The reason that social conservatives are so driven to separate out conscientious objection to same-sex marriage for special treatment (treatment not accorded to conscientious objection to remarriage after divorce, interracial marriage, inter-religion and inter-denominational marriage, and so on) is the elephant under the table in the discussion of “religious freedom”.

    The reason social conservatives do not and will not mention conscientious objection to interracial marriage to be discussed in the same breath as conscientious objection to same-sex marriage is that social conservatives know damn well that if they proposed to allow religious freedom exemptions in the case of interracial marriage, a political shit-storm of Jovian proportion would ensue.

    The reason that social conservatives won’t talk about conscientious objection to remarriage after divorce in the same breath as conscientious objection to same-sex marriage is that social conservatives realize that if we started talking about conscientious objection to remarriage after divorce, as shitload of straight people would realize that same-sex marriage isn’t an alien life form.

    I think that many gays and lesbians are disgusted with the dishonesty of social conservatives in this respect. I know that I am. The elephant in the room poisons the well.

    Reply
  15. posted by Kosh III on

    “ripple effects that are direct violations of the First Amendment protections against the establishment of a government religion and against restrictions on the free exercise of religion.”

    More blatant hypocrisy. There was no objection before Obergerfell to restrictions on marriages by CHRISTIAN denominations which theologically suppported same-sex marriage: e.g. UCC and Disciples to name two. IIRC there was a court case in NC regarding this; the church lost.

    Reply
  16. posted by Kosh III on

    Here’s your heart throb Pence and criminalizing gay marriage
    http://www.nwitimes.com/news/local/govt-and-politics/penalties-await-gay-couples-trying-to-marry-in-indiana/article_3cca22e7-9915-5d26-b0b2-3980aa91afaa.html

    Reply
    • posted by Jorge on

      I’m told bigamy is illegal in all states, but only Utah criminalizes polygamy. How can this be?

      Reply
      • posted by JohnInCA on

        In all fifty states the crime of bigamy is about having more then one concurrent legal marriages.

        In the state of Utah, the crime of polygamy is about cohabitation with multiple people that present as spouses, regardless of the legal standing. The “Sister Wives” guy? He’s not legally married to all those women, and his court case wasn’t seeking to be permitted to legally marry all of them. He was seeking relief from the threat of prosecution for living with all of them and calling them his wives.

        Reply
  17. posted by Jorge on

    The reason that social conservatives are so driven to separate out conscientious objection to same-sex marriage for special treatment (treatment not accorded to conscientious objection to remarriage after divorce, interracial marriage, inter-religion and inter-denominational marriage, and so on) is the elephant under the table in the discussion of “religious freedom”.

    I suppose if I went so far to point out that there’s nothing under the table behind Catholic neutrality toward divorce after remarriage, it’s fair to point out that there’s something under the table behind Christian promotion of religious objection to gay marriage.

    But really it boils down to a simple word: motivation. If a party is not motivated to assert a right, a controversy will not arise. If another is motivated to assert the same rise, there we will have one.

    The mistake that you and liberals all across America are making is that you are arguing that the law is being applied differently to different religious tenets for no other reason than because different religions are differently motivated to become complaintants and seek conscientious objector protection. That is not the case. You cannot infer a negative finding from a nothing.

    Reply
    • posted by Tom Scharbach on

      But really it boils down to a simple word: motivation. If a party is not motivated to assert a right, a controversy will not arise. If another is motivated to assert the same rise, there we will have one.

      If a citizen asserted a religious objection to interracial marriage (and keep in mind that roughly 20% of white evangelical Christians and roughly 15% of white mainline Christians believe that interracial marriage should be illegal) would you treat them on a equal footing with conservative Christians who assert a religious objection to same-sex marriage?

      If not, why not?

      Reply
    • posted by JohnInCA on

      “The mistake that you and liberals all across America are making is that you are arguing that the law is being applied differently to different religious tenets for no other reason than because different religions are differently motivated to become complaintants and seek conscientious objector protection.”
      Actually, religiously-motivated racists did seek exemption from non-discrimination laws. They lost. The precedent set there is kind of why those arguments remain unpersuasive to the judiciary.

      Reply
    • posted by Tom Scharbach on

      Actually, religiously-motivated racists did seek exemption from non-discrimination laws. They lost. The precedent set there is kind of why those arguments remain unpersuasive to the judiciary.

      The basic problem — a brick wall, actually, to date — for religionists seeking exemption from nondiscrimination laws on any ground has been that none have been able to show that the laws create a “substantial burden” to free exercise of their religion. That’s been true under the Sherbert/Yoder test and under the Employment Division test.

      That’s why conservative Christians are so determined to draft laws reducing “substantial burden” to mere “burden” or removing the “burden” requirement entirely. And not one of them seems willing, for whatever reason, to do so with respect to anything other than religious objection to same-sex marriage.

      When pushed as to why, they dissemble, evade, come up with one bullshit nonsense reason after another.

      Talk about “Rights are for me, but not for thee.”

      Reply
  18. posted by Tom Scharbach on

    That was a very good explanation of how you were indeed twisting facts, and a very poor explanation for how my maintaining a consistent position on an issue becomes increasingly unmoored from factual realities.

    Loving did not turn on the fact that Virginia punished citizens who contracted interracial marriages, but on the prohibition against interracial marriages:

    This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.

    The Court explicitly stated that the criminal factor of Virginia’s unconstitutional scheme was not relevant to the Court’s holding:

    Appellants point out that the State’s concern in these statutes, as expressed in the words of the 1924 Act’s title, “An Act to Preserve Racial Integrity,” extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference>. Appellants contend that this distinction renders Virginia’s miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve “racial integrity.” We need not reach this contention, because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the “integrity” of all races.

    Obergefell cited Loving repeatedly, as follows:

    Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1 , invalidated bans on interracial unions …

    The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause.

    Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause …

    Neither Justice Scalia’s nor Justice Alito’s dissent mention Loving.

    Chief Justice Robert’s dissent cited Loving several times, none of which so much as suggest that the criminal aspect of the Virginia scheme was relevant or distinguished Loving:

    We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia, 388 U. S. 1, 12 (1967) .

    Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. Loving, 388 U. S., at 6–7.

    Shortly after this Court struck down racial restrictions on marriage in Loving, a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving, and this Court summarily dismissed an appeal. Baker v. Nelson, 409 U. S. 810 (1972) .

    When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” … see Loving, 388 U. S., at 12. … In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification.

    The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.

    Justice Thomas did attempt to distinguish Loving and Zablocki (a Wisconsin case under the statute I mentioned earlier) on the basis that the cases involved criminal penalities for an illegal marriage:

    Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967) , for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.[5] They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.[6] In a similar vein, Zablocki v. Redhail, 434 U. S. 374 (1978) , involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U. S. 78 (1987) , involved state inmates who were prohib-ited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.

    Much has been made of this dissent among social conservatives, just as you are attempting to do. But I point out to you that this is a single paragraph from a dissent, and is not relevant to the opinion/dissent of any other Justice.

    You are just wrong on this, Jorge. Dead wrong.

    Reply
  19. posted by JohnInCA on

    In vaguely related news, a California barber that refused a “female”† customer due to religious objections lost his case. [Link]

    So here’s the question for folks that keep saying we need “religious liberty” exceptions. When will you stand up for Mr. Hernandez’s right to discriminate against women because of his religious objections to cutting women’s hair? Because if you only care about florists and bakers denying gay folk, but don’t care about this guy refusing women? Then you aren’t talking about “religious liberty”, you’re talking about “anti-gay discrimination”. Whether your “religious liberty” is broad or narrow is the difference between a principled stance and an opportunistic one.
    ________
    †They actually identify as trans, but apparently his perception was that they were a woman and refused them on that account, so while a trans person is involved in the case, it’s about sex discrimination.

    Reply

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