Ack! Activist Legislators Thwarting the Will of the People…
Yes E.D., they found a way to spin it, and here we go…
By only one vote, the Vermont House just voted to override Governor Douglas’s veto, overturning the common sense definition of marriage shared by people of diverse faiths, backgrounds, nations, and political parties. Today is truly a sad day for Vermont and this nation.
But we take heart in knowing that this vote was not representative of what Vermonters understand marriage to be. We know that the Vermont Legislature did everything in its power to avoid allowing Vermonters to vote directly on the future of marriage.
In the wake of the Iowa Supreme Court decision and Vermont Legislature’s action, the National Organization for Marriage will tomorrow launch a new national ad campaign that highlights how same-sex marriage undermines the core civil rights of those who believe in the simple truth that marriage is the union of one man and one woman.
Today is indeed a sad day, but let all of us who understand that marriage is the union of a husband and wife redouble our commitment to ensuring that same-sex marriage does not spread throughout our nation, that religious liberty is protected, and ultimately that marriage is restored in these states as well for the sake of our children and grandchildren.
Look, people who wanted a different outcome have a right to be disappointed that the outcome did not go their way. That said, these are the same people that have, time and time again, insisted that the only way this issue should be resolved is through democratic process. As the unbridled majoritarians got the process they asked for and a result they didn’t, they should simply leave their disappointment at that. That some are attacking the process itself is the sort of wingnuttery and stupidity that flushes what little credibility some of the most unintelligent, sophomoric and petulant culture warriors have left, not that they had much to begin with.
Last point, since organizations like the National Organization for Marriage seem inclined to take the battle against same-sex marriage far beyond the definition of what is really civil marriage and into the realm of making arguments that their own civil rights and religious liberty are being threatened, all I’ll say on is that groups like the Alliance Defense Fund have argued that the “homosexual agenda” in of itself a threat to religious liberty so my skepticism leads me to believe that their motivations are not concern is not for the institution of state-sanctioned civil marriage providing equal legal benefits but of class animus towards a specific group of individuals no matter what they do. I also find the “gay marriage as a systemic threat to religious liberty” argument completely absurd and have little to say about those who make them.
Addendum: 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.
“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
I don’t know, Paul. I think Churches are still allowed to marry or not marry whomever they choose.Report
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
That’s good then. Probably I’ve been reading too much Rod Dreher.Report
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
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
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
Er, chose between the sign or it’s “subsidy”, I mean.
Typed ahead of myself there.Report
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
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
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
“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
“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
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
I never hear of people wanting to tax the Amish.Report
The Amish understand the value of payola.Report
This from the crowd that used to protray 50% + 1 as a mandate.
More proof that “11/4/08 changed everything!”Report
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
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