Ack! Activist Legislators Thwarting the Will of the People…

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Dave

Dave is a part-time blogger that writes about whatever suits him at the time.

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19 Responses

  1. Avatar paul h.
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    says:

    “Just to be crystal clear, if and when there is a legitimate threat to the religious liberty of an individual as it applies in these circumstances, I will defend their right to that liberty. That should not be an issue here. Please don’t make it one. ”

    Here’s a very obvious and plausible example; a gay couple decides that they want to be married in the Catholic Church. The Catholic Church refuses. The gay couple sues the Catholic Church for a hate crime, discrimination, etc., since, after all, this is now a federally-guaranteed right. No one could have any legal basis on which to argue that refusing marriage to a gay couple isn’t “just as bad” as the Catholic Church hypothetically refusing to marry a black man and a white woman. Try to tell me that the gay couple wouldn’t win that lawsuit in America in 2020; and don’t try to tell me that you and, I guess, Andrew Sullivan posting valiantly about “but, gasp, that’s a threat to religious liberty!” will have any effect.Report

  2. Avatar E.D. Kain
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    says:

    I don’t know, Paul. I think Churches are still allowed to marry or not marry whomever they choose.Report

  3. Avatar Mark Thompson
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    says:

    Paul – at that point, you would have a clear violation of First Amendment freedom of religion. Under existing law, religiously-based institutions are free to discriminate as much as they wish against anyone they wish, provided that the subject matter pertains to religious doctrine. There is some reason for concern because courts have held that freedom of religion does not apply where the subject matter does not pertain to religious doctrine, such as where a church discriminates against a layperson (as opposed to a clergy member) – but even there, the law is very clear that courts will dismiss the case as long as the church can offer ANY religious reason for the discrimination – courts are not even permitted to inquire as to whether the excuse is a mere pretext.

    So, short of a complete overturning of very well-established First Amendment precedent, there is no danger of the result you fear.Report

  4. Avatar paul h.
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    says:

    That’s good then. Probably I’ve been reading too much Rod Dreher.Report

  5. Avatar Mark Thompson
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    says:

    Addendum – since marriage is a religious sacrament, short of a complete reversal of pretty ironclad First Amendment law, you would never even get to a situation where a church was asked to provide a religious reason for its discrimination. Such a case would be immediately dismissed without any opportunity for discovery.Report

  6. Avatar Jaybird
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    says:

    I don’t know.

    I could easily see this as being the equivalent of a “we reserve the right to refuse service to anyone” sign.

    The tax exemption status the church receives will be seen as a government subsidy and the church will be forced to choose between leaving that sign up or losing its “subsidy”.Report

  7. Avatar Ken
    Ignored
    says:

    Paul:

    Anything could happen. SCOTUS could decide that the First Amendment rights of gays compel me to buy them fabulous window treatments. But there is no credible threat — at least, credible to anyone reasonably familiar with the applicable law — that the courts will compel churches to preform gay marriages, or even revoke their tax-exempt status if they do not.

    The cases to date in which churches and religious people have been sanctioned for refusal to deal with gays (the church in New Jersey, the wedding photographer in New Mexico) have involved churches and religious people offering public accommodations and running afoul of state or local anti-discrimination laws when they wanted to refuse to make those public accommodations available to gays. The New Jersey church, after previously renting a pavillion to all and sundry without any sort of religious test or faith-based restrictions, suddenly refused to rent it to gays. Nobody has been forced to administer a sacrament against their will, or alter the order of prayer.

    There are libertarian arguments to be made that churches, and people, regardless of whether their reasons are religious, should be able to discriminate as they please, even in running public accommodations. But those arguments really have nothing at all to do with gay marriage, and gay marriage does not really move the ball. The quarrel here is with anti-discrimination law, not with gay marriage. Gay marriage is a red herring. It will be interesting to see how gay marriage opponents attempt to “defend religious liberty” (as they put it) without attacking the entire concept of anti-discrimination laws.

    On the tax-exemption front — another popular bugaboo of people afraid that the government is about to force churches to solemnize gay marriages — the risk is similarly wildly exaggerated. A close reading of the Bob Jones University case demonstrates how narrow it really was, premised as it was on the long-standing, undisputed, and solid public policy against racial discrimination in school admission. (Cultural conservatives tend to distort the holding in BJU by claiming that BJU lost its tax-exempt status by forbidding interracial dating. In fact, BJU — among other things — denied admission to anyone in an interracial marriage.) Moreover, the BJU case draws a distinct line between conduct based on religious belief and the practice of religion. Marriage ceremonies stand rather firmly on the other side of the line.

    In short, the predictions that we will be compelling churches to marry gays in the foreseeable future is unsound propaganda.Report

  8. Avatar Jaybird
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    says:

    Er, chose between the sign or it’s “subsidy”, I mean.

    Typed ahead of myself there.Report

  9. Avatar paul h.
    Ignored
    says:

    Though, generally, it really should be said that I’ve gone to philosophy conferences where I’ve heard queer theorists say things like “we need to destroy the hetereosexual family,” and “we need to ‘queer’ American society” (verbatim). It’s not completely ridiculous to say that there’s a group of people who are militantly opposed to tradition, who hold traditional morality to be immoral, and who are interested in imposing their own morality on others. There really is a homosexual agenda; I’ve met these people.

    Now, with that said, I think it’s right to say (as some blogger, either Sullivan or Linker or someone quoted by them, said), there’s a big difference between militant homosexuality and two 70-year-old lesbians who want to get married.Report

  10. Avatar E.D. Kain
    Ignored
    says:

    Right. And it’s not as though various religious groups have ever been compelled to marry members of other religions either – I know that doesn’t make sense, really, but the point is that there are actually already different sorts of marriages in this country, and it hasn’t changed the fact that Catholic Priests don’t have to marry atheists or Buddhists if they don’t want to.Report

  11. Avatar E.D. Kain
    Ignored
    says:

    There are militants of every stripe, Paul. Fact is, you disarm the militants when you absorb their cause into the mainstream. Gay marriage will completely undermine the anti-traditionalist “militants” as it will open up the much more sensible, mainstream, traditional course to gays – who are mostly just normal people who want nothing to do with the extremists.Report

  12. Avatar Jaybird
    Ignored
    says:

    “another popular bugaboo of people afraid that the government is about to force churches to solemnize gay marriages”

    Eh, maybe I hang out with too many radicals but I hear, quite regularly, that churches ought not keep their tax exemptions.

    When I point out LBJ’s laws threatening uppity churches that campained from the public, it is pointed out to me that, indeed, “that’s different.”

    But, again, maybe I hang out with too many radicals.Report

  13. Avatar Ken
    Ignored
    says:

    “Eh, maybe I hang out with too many radicals but I hear, quite regularly, that churches ought not keep their tax exemptions.”

    There are colorable arguments that churches should not keep tax exemptions, and “movements” — to use an extremely generous term — of people who want to achieve that. But the legalization of gay marriage does not make it any more likely that tax exempt status will be revoked under existing law, or that such revocation will survive a challenge as it did in the BJU case. It’s a red herring.Report

  14. Avatar Dave
    Ignored
    says:

    It will be interesting to see how gay marriage opponents attempt to “defend religious liberty” (as they put it) without attacking the entire concept of anti-discrimination laws.

    Good point. It seemed to me that most of the cases in question at the link I posted fell under the rubric of existing anti-discrimination law.

    Paul H.,

    …and don’t try to tell me that you and, I guess, Andrew Sullivan posting valiantly about “but, gasp, that’s a threat to religious liberty!” will have any effect…

    I’m too humble for that. 😉Report

  15. Avatar Cascadian
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    says:

    I never hear of people wanting to tax the Amish.Report

  16. Avatar Jaybird
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    says:

    The Amish understand the value of payola.Report

  17. Avatar Dave S.
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    says:

    This from the crowd that used to protray 50% + 1 as a mandate.

    More proof that “11/4/08 changed everything!”Report

  18. Avatar Dave
    Ignored
    says:

    Dave S.,

    I’m a libertarian so we don’t necessary have the same affinity for democratic process as liberals and conservatives seem to (at least when the outcomes of those processes favor their pet causes). 50% + 1 is never legitimate on the basis that it is 50% + 1. As such, I have no clue where you’re coming from.Report

  19. Avatar Jaybird
    Ignored
    says:

    I remember people explaining to me in 1992 that Clinton had a mandate. “If this election wasn’t a repudiation of Reaganism, then I don’t know what is!”

    While probably a very true statement, it doesn’t have a whole lot of argumentative power behind it.

    I’d much rather a “The People” who had a firm grasp of what the government was, and was not, allowed to stick its nose into than a bunch of folks who take the attitude “I’ll trade away this right I’m not using in order to deny it to you.”Report

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