Gay marriage and religious liberty ctd.


Erik Kain

Erik writes about video games at Forbes and politics at Mother Jones. He's the contributor of The League though he hasn't written much here lately. He can be found occasionally composing 140 character cultural analysis on Twitter.

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71 Responses

  1. Avatar Jaybird says:

    See it this way:

    You planted a seed.Report

  2. Avatar MikeNYC says:

    I would like to contribute the following thoughts to this discussion.

    First, would we be having this discussion if instead of gay rights it was rights of black people or some other minority? In the south many churches vehemently opposed mixed race marriage as well as integration. They too claimed that allowing these things infringed on their religious liberties.

    Secondly, why has NO ONE mentioned the fact that many churches, as part of their religious faith, accept and marry same sex couples. Since we know that the law requires a state mariage license before clergy can marry people, then it would seem that out lawing same sex marriage is infringing on the religious freedoms of those churches. In New York State, several clergy were arrested for marrying same sex couples without a valid marriage license. It would seem that religious liberty is a one way street for some people.

    Finally, why should tax dollars from homosexuals be used to support institutions that condemn them? It would be just a ridiculous to have tax dollars from black people supporting institutions with anti-black policies.

    My point is, in all these discussions and articles, I have yet to see these issues addressed.Report

    • Avatar Kyle says:

      “Finally, why should tax dollars from homosexuals be used to support institutions that condemn them? It would be just a ridiculous to have tax dollars from black people supporting institutions with anti-black policies.”

      The same reason taxes from anti-war protesters pay for wars, why taxes from South Carolina supported a damaging Tariff 170 years ago, why taxes from Toyota employees bailed out the Big Three. Union. Our Republican Union. That we should not have all we prefer is the cost of living in large and vibrant democracy. That we do not suffer from the extraordinarily crippling poverty and abuse that hundreds of millions do globally, is the benefit.

      As for your claims that churches opposed integration as an infringement upon their religious freedom, I’d like a link if you can manage, I find that hard to believe.

      There are some ways in which racial discrimination and sexual orientation discrimination are analogous and some ways in which they aren’t. SSM arguments – to me – fall solidly in the ways in which they aren’t similar category.Report

      • Avatar Elizabeth says:

        Accounts of religious opposition to integration, and why it eventually subsided:

        Also, there is a difference between federal funds going toward programs you disagree with, and federal funds being used to support discrimination against a group of people.Report

        • Avatar Elizabeth says:

          Example: Catholics may not like that their tax dollars go towards comprehensive sex education, or the death penalty, but living in a large vibrant democracy as you say, that is something they must deal with.

          Surely you must see the difference between those examples, and say a government contracter that had an explicit policy of discriminating against Catholics?Report

          • Avatar Kyle says:

            Yes, but there’s a difference between programs one disagrees with and programs that are actually harmful to your interests which arguably two of my three examples are. Those are more like discrimination than a matter of preference. So the point still stands.

            It also stands in opposition to the idea raised by MikeNYC that such things are either ridiculous or shouldn’t be allowed to happen. That said, I fully support groups lobbying for a change. For example part of my opposition to the death penalty is predicated on the idea that Catholics and others who object to taking a life on religious grounds shouldn’t be partially responsible for funding state-sanctioned murder.

            Again, black taxes supported the growth of the suburbs, development of highways, the G.I. Bill, and the institutions that developed and used redlining. All of which weren’t just instrumental in building the white middle class but actively denied or undermined the same wealth building for blacks.

            The fact of the matter is I challenge the idea that these are funds supporting discrimination. They’re funds that support work done by organizations that happen to discriminate, something all organizations do to some degree or another. Which means the problem at hand isn’t discrimination versus not-discrimination but valid versus invalid. Otherwise, a matter of degree. Moroever, i don’t think there’s a large difference between programs one doesn’t like and discrimination. Government money is – more often than not – discriminatory.Report

      • Avatar Jim says:

        “As for your claims that churches opposed integration as an infringement upon their religious freedom, I’d like a link if you can manage, I find that hard to believe. ”

        they did not. They presented it as a religious issue of morality. tehy believed that segregation was Biblically mandated, much as they had once believed slavery was Biblically mandated. Fortunately for all of us thet rememebred how the fisrt issue had been decided.Report

  3. Avatar Bill says:

    In the United States of America, ‘religious liberty’ is clearly nothing more than people treating those that they feel are ‘less than’ they are in vile and discriminatory ways and masking that as ‘god.’

    MY church has no problem marrying same-sex couples. They have done so for years. So, whose ‘religious liberty’ is actually at stake here?

    And should we start using the referendum process, as has been so disgustingly used against gay citizens, to determine what will be the ‘religion of the land?’ I would suggest that Catholics and Christians could move to a country where they could live under the Theocracy they so desire. Heck, they could even kick in and help out with the war while they are there.

    This has become SO ridiculous. One group fighting for equality. The other group, always the ‘god group,’ fighting for THIER right to continue to treat others badly, and so immorally using god to do so.

    Jesus would weep. And so will we.Report

    • Avatar E.D. Kain says:

      The issue at stake is not whether or not we feel that any particular religious group is right or wrong about gay marriage (etc.) It’s about their religious liberty to follow their religious beliefs and not be coerced by the state to do otherwise. We may not like it, but we certainly value our own religious liberty. We don’t want our own freedoms taken away.

      All of which is to once again point out that the two are not mutually exclusive if done right.Report

      • Avatar Nob Akimoto says:

        I’m still at a loss as to why the DC statute’s a religious liberty issue. There’s no right for the Catholic church to receive money from the state to fund its philanthropic activities. The church can either take it or leave it. If they feel their discrimination against gay people is more important than their charitable work it’s their own damned choice to prioritize one over the other and lose the contracts, it has nothing to do with coersion.

        Since when did conservatives believe that institutions had any fundamental right to money from the state?Report

        • It’s along the lines of an establishment clause issue, and certainly constitutes an infringement (it may or may not be a constitutional infringement). Essentially, the DC Council is saying “we will award contracts to religious (and secular) organizations for charitable purposes,” but then is following that up with “but we will not award contracts to religious organizations whose religion believes X.” It privileges religions that do not have canonical belief X over religions that do.

          Of course, this is likely a rule of general applicability, so it may well be Constitutional nonetheless, but there can be no denying that it infringes in at least a small way on religious liberty by rewarding (or not rewarding) religious groups based on their canonical beliefs.Report

          • Avatar Nob Akimoto says:

            I can see that. Though it seems to me this is still based upon the concept that there is something specifically religious about the charitable contracts. Are these prohibiting secular organizations from participating?

            I’m of the opinion (more or less) that religious institutions voluntarily give up some of their protections when they decide to intervene in secular matters, given that religious liberty is predicated upon a separate sphere which is inalienable. When the Catholic Church acts as a secular power as a charitable institution, then it should behave like one, and not get any additional free passes against complying with a discrimination statute than a secular group does. Should there be two standards for judging charitable organizations?Report

            • Avatar Kyle says:

              “Should there be two standards for judging charitable organizations?”

              Probably. Given that the point is for charitable organizations to help the needy. Who provides the assistance is far, far less relevant.

              In this case, I think the quest to legislate social acceptance/stigma detracts from the primary point of the issue at hand, helping people.Report

            • Nob:

              There is some truth to your opinion, to be sure. But, as I said, this area of law gets pretty muddled pretty quickly once you start talking about government contracts.

              For personal reasons, I’m taking great care to avoid any normative statements about where I think the constitutional line should be drawn. However, not all that is an infringement need be unconstitutional and there are good arguments to be made that religious organizations engaged in secular functions are/should be subject to secular laws (if only for purposes of those functions…you run into big problems really quick when you start saying that secular functions should be prohibited as long as the spiritual doctrine of the religion runs afoul of discrimination laws).

              That said, even a constitutional infringement is still an infringement, and we should recognize it as such. So, we should recognize that pulling contracts from religious groups as a means of enforcing anti-discrimination laws is very much an act of government sending a message about what it believes to be appropriate religious beliefs even if the act of pulling those contracts is nonetheless Constitutionally permissible. Again, though, I’m not offering any normative opinion on whether anti-discrimination laws should be enforced in that way, just saying that even if they should be enforced in that way (which would for our purposes be Constitutionally permissible), there is still a definite non-trivial impact on religious liberty that should be acknowledged.

              One reason this is important is that we don’t want to be in a position where a governing body can create a host of facially-neutral contracting rules that in practice mean that only one or two particularly favored religious groups are qualified for government contracts.Report

          • Avatar Dan Miller says:

            I’m definitely not a lawyer, but this seems like weak sauce. Couldn’t you claim the same thing if the state refused to grant contracts to the World Church of the Creator because of its views on race?Report

            • Yes, you could, and the answer would be the same. It’s an infringement on religious liberty, but it may very well be a constitutional infringement. This is, not surprisingly, a very messy area of the law.Report

          • Avatar Marco Luxe says:

            Mark Thompson: you got precariously close to getting it right, but not quite. Your “X” is the unexamined wildcard that needs analysis.

            DC says “we will award contracts to religious and secular organization for charitable purposes…but will award contracts only to religious organizations whose religion believes in X. So it does privilege religions that have a canonical belief in X over religions that do not. The question is why does DC do this, and is it proper to favor some beliefs?

            OK, here’s the analysis. Let X = non-discrimination policies related to a suspect classification. People discriminate between groups for some reason, so not all differentiation by group is improper. What analyzes propriety in discrimination revolves around “suspect classification”. This is an historical logical multi-pronged legal analysis to arrive at X, the group that should not suffer from disparate treatment by the government. The factors to consider are historical discrimination, issues closely held as to personhood, difficulty changing, relative political powerlessness as a group, etc. This logical process has been tested over time. Defining X depends on logic that is visible to all. So far in most places, X = race, gender, religion and national origin for most purposes.

            The question then becomes: is it proper that DC use this clear analysis to define X rather than letting religions define X by using inconsistent and opaque interpretations of the rules of a flying spaghetti monster?

            Logic and transparency over blind dogma…. don’t we all want this for government rules of general applicability?Report

            • I understand all of this, as discrimination law is an area with which I have a lot of familiarity. However, for purposes of this discussion, I am explicitly avoiding the issue of whether the DC Council’s hypothetical actions are Constitutionally justifiable, and limiting my analysis solely to the point that those actions do infringe on religious liberty. As I note above, not all infringements on religious liberty are unconstitutional.Report

          • Avatar Cascadian says:

            There have been some interesting cases in Canada on this recently. If you’re Muslim can you refuse to service the blind with aid-dogs? If you’re a Christian in public school, can you act in a way to stigmatize gays? The courts have said basically, you can believe anything you want but you must act with toleration in a secular society. Perhaps disallowing some behavior is a religious infringement but religion isn’t a superior freedom.Report

          • Avatar John B. says:

            “Essentially, the DC Council is saying “we will award contracts to religious (and secular) organizations for charitable purposes,” but then is following that up with “but we will not award contracts to religious organizations whose religion believes X.” It privileges religions that do not have canonical belief X over religions that do.”

            No, it has nothing whatsoever to do with religious belief; in fact it is being scrupulously religiously neutral. What the DC Council is saying is that all groups receiving public funds must follow the same set of rules, and one of those rules is that discrimination is not permissible. The group applying for the funds can agree to abide by those rules and receive the funds, or it won’t agree to abide by those rules and therefore loses the funds. How is this any different from Catholic Charities, for example, wanting to fire somebody for getting divorced and remarrying? Or refusing to pay health benefits to the employee’s spouse of a second marriage? In both cases the group (if it receives public funding) is prevented, by law, from discriminating, and yet somehow manages to live with the law.

            A religious group that refused to employ black people, or to recognize interracial marriages, for reasons however “canonically” based, would be in a similar position. In fact the Catholic Church is seeking a SPECIAL RIGHT to discriminate that no secular group competing for those same funds would get. And as a DC resident I have no desire to see my tax dollars going to a group that reserves the right to discriminate against me.Report

      • Avatar Jim says:

        “It’s about their religious liberty to follow their religious beliefs and not be coerced by the state to do otherwise.”

        This has nothing to do with any situation being discussed here.

        Either it is a matter of religious group insisting that they have a right to coerce the state into to abiding by its beliefs, or it is a case of a religious grouop insisting that they have a right to state sponsorship by contract when they act according to their religious beliefs.

        They can fund themselves when they want to act outside the law and contrary to the basic principles of the Constitution.Report

  4. Avatar Jaybird says:

    “(I don’t like the phrase “granting rights” but I’m at a loss for something better)”

    Recognizing rights?
    Deciding to cease violating rights?Report

    • Avatar Dan Miller says:

      Or, coming from a more anti-gay perspective, “deciding to recognize rights” would seem to be even more neutral.Report

    • Avatar Silus Grok says:

      I’d suggest “negotiating rights”.Report

      • Avatar Jaybird says:

        I’ve too much Plato to see rights as things that can be negotiated.

        They either are or they are not. (Indeed, I don’t believe that it’s possible for me to have a “right” that did not also exist 25 years ago, 250 years ago, or 2500 years ago.)

        But the provenance of Rights is a knock-down, drag-out battle in its own right.Report

  5. Avatar Herb says:

    Dreher would be well-served by looking into the number of affirming churches whose religious liberty is infringed RIGHT NOW by gay marriage bans. My Mom was married in one. *

    *Technically not, since marrying someone of the same sex is illegal, but who cares? I’m going to call it a marriage, even if the state will not.Report

  6. Avatar Sam M says:

    From Mark’s excerpt”

    “It is only laws that prohibit private discrimination in the first place that actually present a conflict with the free exercise of religion. ”

    Well, then… Do proposals to accept gay marriage prohibit private discrimination? If so, then, by this definition, they present a conflict with the free exercise of religion.

    Examining the questions is kind of tough, as it depends on your definition of “private.” Let’s say I have a company with employees. I am very religious. I extend benefits to the spouses and families of my workers. I do not accept gay marriage, personally. I view extending benefits to a same-sex spouse as the same thing as extending them to a live-in lover. As such, I do not want to extend benefits to same-sex spouses.

    I am just wondering where everyone stands: ED… would this arrangement be OK to you? Or would the employer in this case be required to extend benefits to the same-sex spouse? Or should it be legal for the employer to discriminate in this fashion?

    Either way, do you see this as “interfering” with the employer’s “religious rights”?Report

    • Avatar E.D. Kain says:

      Examining the questions is kind of tough, as it depends on your definition of “private.” Let’s say I have a company with employees. I am very religious. I extend benefits to the spouses and families of my workers. I do not accept gay marriage, personally. I view extending benefits to a same-sex spouse as the same thing as extending them to a live-in lover. As such, I do not want to extend benefits to same-sex spouses.

      Well a business is very different from a Church. There are legal distinctions that make the rules quite different. So no, I think you would not be – nor should be – exempt from providing benefits based on your personal religious views for your employees while providing benefits to others. However, a religious group classified as such should not have to do things that go against the grain of their religious teaching.

      And no – I don’t see this as “interfering with the employer’s” religious liberty.Report

    • The point is that the conflict with religious liberty stems from anti-discrimination laws, not from allowing SSM. Your hypothetical is not materially different from, say, someone who does not believe in divorce refusing to extend benefits to an employee’s second spouse. Is this an infringement on religious liberty? Yes, absolutely. But is it some kind of unprecedented infringement on religious liberty? Not at all. In order to be concerned about the conflict between SSM and religious liberty, one has to either acknowledge that one is perfectly ok with other infringements on religious liberty via discrimination laws, so long as they do not infringe one’s own religious beliefs, or that anti-discrimination laws are the real problem and SSM marginally expands the scope of that problem. Either way, one cannot claim that SSM presents some sort of unprecedented threat to religious liberty.Report

      • I should add – I take no position here as to whether this would be an appropriate and constitutional infringement on religious liberty, because I don’t think that is relevant to the issue at hand. The fact is that such infringements have a fairly lengthy history of being authorized by statute and upheld by the courts.Report

  7. Avatar Byrd says:

    “and third, that gay rights advocates should be careful not to support measures that really do threaten religious liberty – it’s bad strategy, and risks small victories at the expense of later defeats.”

    Okay Mr. Bossy. Good job telling people what to do. Have you ever considered the fact that some gay rights advocates do not believe that certain people’s fictional stories should be given any weight in our civil government? I support any measure that infringes on so-called “religious” liberty. These people think they can control my life because of some stories that a bunch of men made up 2,000 years ago? Sorry, but I’d rather stick to the moral code of Stinky and the Brain then listen to your “religious” load of crap. Hail to the end of “religious” falsehoods and “moral” code!

    For reads on this topic and more, check out:

    • Avatar North says:

      Byrd. Setting aside the morality of intruding the law into religion directly (and that’s a lot to set aside) there’s a practical answer. If you try and turn the quest for civil marriage for same sex couples into some sort of crusade against religion in general you will lose. Horribly.Report

      • Avatar Cascadian says:

        I’m not so sure. SSM isn’t as scary to the young who are already moving away from religion. I’d say that the SSM fight will lead to churches losing more young not less. Of course, as we discussed the other day civil unions might actually help this process more than SSM.Report

        • Avatar North says:

          That may be Cas, but I humbly submit that if the cause of SSM turned into a general crusade against religion then an absolutely enormous amount of sympathetic allies and fence sitters would jump to the other side.Report

          • Avatar Cascadian says:

            You’re right. I don’t think a frontal assault would be helpful. It’s much better to be all the things you advocate: patient, understanding, accommodating. Let the religious be the unreasonable. They’re perfectly capable of hanging themselves. All they need is a bit more rope.Report

            • Avatar byrd says:

              I completely agree with you both. If legalizing gay marriage was my only priority, then being patient and not attacking religion would be the most strategically sound way to go. That being said, I have more wishes then just the legal recognition of all marriages. It is my hope that one day crazy egotistical “religious” people will stop thinking that they are morally above others and that they are ordained by “god.” Once the world stops fighting over which piece of fiction is “truth,” maybe we could start having REAL piece talks. And you can all point out how obnoxious I’m being towards religion but just know this – my intentions are PURELY and ONLY to have world piece one day. Even if you disagree with me, just know that I truly believe that religion is the most basic and evil part of the culture that is currently ripping our world apart. The world would be a better place if religion was squashed like a bug!


  8. Congrats to all the couples who are coming to CT to wed from all across the country.
    Cheers, Joe Mustich, Justice of the Peace,
    Washington, Connecticut, USAReport

  9. And kudos to CT on its one year marriage equality law anniversary.Report

  10. Avatar Kyle says:

    1. Are your bullet points, mini-bowlers?

    2. You’re completely right about the media spin, I spent most of yesterday traveling and the CNN ledes were entirely oppositional. Though, I saw it as the unfortunate consequence of controversy-mining at the expense of an airing an accurate narrative.Report

  11. Avatar Sam M says:

    Well, here we have an interesting set of responses:

    Mark: “Is this an infringement on religious liberty? Yes, absolutely.”

    ED: “And no – I don’t see this as ‘interfering with the employer’s’ religious liberty.”

    I am not agruing that businesses are the same as the church. Nor am I arguing that any “infringement” that exists is unique in the case of gay marriage.

    All I am arguing is that it’s possible for completely reasonable people to suggest that the idea of gayt marriage–and it’s inevitable results–do, in fact, constitute an infringement on religious liberty.

    Is that a good thing? A bad thing? I am not entirely sure. I am certainly no purist in this regard. If someone’s religion were to insist that they don’t hire black people, or that they pump their kids full of black-tar heroine, I would be all for telling them that there religion is stupid and/or that I have no trouble infringing on these ideas. Screw them.

    But I think you sort of have to man up and tell it like it is. If you are for gay marriage, you can’t dance around the issue. You have to say, “Know what? I understand that youo are a fundamentalist Christian or… whatever. I don’t care. This law is going to force you to do something that’s against your religion. If you don’t do it, you go to jail. Period.”

    What I can’t see as possible is this: “Handled poorly – as it has been in D.C. – the push for gay rights can pose a threat to religious liberty. Handled properly, however, I think our system is the perfect one to preserve both.”

    I think Mark has it right. You can’t preserve both. The scenario I laid out clearly infringes on someone’s rights in favor of another. I don’t think it does any good to sugar-coat that. It ain’t pretty. And it makes SSM a tougher sell politically. But it’s honest.

    If you are going to invest SSM unions with the legal imprimatur of “marriage,” that comes with certain rights. And you are, without a doubt, going to have to FORCE many people to respect those rights.

    There is no way to preserve both.

    I think Dreher is overstating his case. I don’t think preachers are going to be told what to say on the pulpit. But that’s a very small percentage of what we consider to be our relious rights.Report

    • Avatar Bo says:

      But that’s a very small percentage of what we consider to be our religious rights.

      Your post functions as a very good explanation of why ‘what religious people consider to be their religious rights’ is the worst possible framework for religious rights.Report

    • I think you’re misunderstanding the point here, though. Same-sex marriage does not, by itself, infringe on anyone’s religious liberty in any way, shape, or form. Laws regarding private discrimination, however, do infringe on religious liberty (whether justifiably so or not). Without anti-discrimination laws, you could still have same-sex marriage, and there would be no conceivable infringement on religious liberty. With anti-discrimination laws, you have infringements on religious liberty regardless of whether you permit same-sex marriage. At most, same-sex marriage will marginally increase the instances of infringements under existing anti-discrimination laws in precisely the same way as no-fault divorce laws increased the number of infringements under then-existing anti-discrimination laws. These infringements are certainly not trivial, but they are also far from the unprecedented and uniquely menacing infringements that opponents of SSM are portraying them as. Indeed, it is quite possible to have SSM without any infringements of religious liberty whatsoever, and as I note in my post, the courts have already established doctrines (the ministerial exception is just one) that will ensure that whatever infringements do result are significantly minimized – you are never, ever, going to wind up with a situation where anti-discrimination laws plus SSM result in a church being forced to marry a same-sex couple against its doctrine.

      All of which is to say that the argument that SSM is itself a threat to religious liberty ignores the actual threat to religious liberty – a threat that has gone largely unchallenged for quite some time.

      I don’t know if you’ve read my full post, but hopefully, that should make this a bit more clear.

      E.D.’s point, at least assuming I’m understanding him properly, is exactly correct – it is possible for SSM to coexist with religious liberty without placing any kind of burden on religious liberty, so long as anti-discrimination laws are loosened. (I here offer no opinion on whether I personally think anti-discrimination laws should be loosened).Report

      • Avatar E.D. Kain says:

        I’m not sure there would need to be a loosening of the anti-discrimination laws. Right now in most places religious organizations are exempt from those laws. I don’t think private businesses should be given the same exemptions as religious organizations. Though, ironically, the question of benefits would be entirely non-existent if benefits were not derived from employers.Report

        • “I don’t think private businesses should be given the same exemptions as religious organizations.”

          Without getting into the normative side of this, I’ll just repeat the point I’ve made above, which is that this still involves an infringement of religious liberty, even if we think that infringement to be de minimis and constitutionally permissible. The Feldblum article that Dreher and I discuss makes this point quite well, I think, even if I disagree with the way in which she thinks about rights. Actually, if you have the time, I highly recommend you read it, because I suspect you’ll agree with her quite strongly.Report

  12. Avatar Kyle says:

    Reading discussions about religion and civic life these days makes me think of this Onion headline Area Man Passionate Defender Of What He Imagines Constitution To Be.Report

    • Avatar Jaybird says:

      Yeah, I figure I’ll throw a post together about “Rights” and the various theories of where they come from and where the theories of their provenance leads to which rights and submit it.

      It’s due!Report

  13. Avatar Sam M says:

    “I think you’re misunderstanding the point here, though. Same-sex marriage does not, by itself, infringe on anyone’s religious liberty in any way, shape, or form.”

    But it does in the context of the current legal landscape, which includes anti-discrimination laws. Is anyone proposing we get rid of those? Is ED? Not entirely of course. But he seems to think the issue begins and ends with “religious groups.” Or… he says:

    “So no, I think you would not be – nor should be – exempt from providing benefits based on your personal religious views for your employees while providing benefits to others. However, a religious group classified as such should not have to do things that go against the grain of their religious teaching.”

    I presume this means that the church would be free to refuse to extend benefits to SSM couples. (And refuse to comply with other elements of anti-discrimination statutes.) But private employers would not.

    I guess that’s an important distinction that will put a lot of peoples’ minds at ease. But I am not really sure how many. Either way, what is clearly the case is that these laws are going to tell law firms and other small businesses that they MUST extend benefits to SSM spouses. And, as Dreher points out, recognizing SSM will REQUIRE the owner of a bed and breakfast to rent rooms to SSM couples.

    In short… we will be telling them, “Too damn bad. We don’t care what your religion says.” Which, again, is fine by me. We don’t let the owner of Denny’s refuse to serve black people, no matter what his religion says. If he tries to do so, we fine him or put him in jail. Screw him. I don’t see that there is any way to “handle this properly,” in such a way that religious rights are kept whole, and we recognize SSM marriage.

    Something has to give. And maybe it should. But clearly, someone is taking a hit. even if we think they should, they are taking it.

    I guess you can argue that the private sphere doesn’t matter, and that all we should be worried about is how we treat “religious groups,” but keep in mind that the original post dealth with the impact such things would have on the acceptance of gay marriage. I would submit that the idea of forcing an evangelical-owned bed and breakfast in Alabama to rent rooms to anyone they deem unsavory–for whatever reason–will have at least as much impact on public opinion as any effort to dictate the human resources policies at a Catholic hospital.

    Again, I am prepared to tell the owner of the bed and breakfast to go pound sand. But let’s be clear: We are going to be telling him to go pound sand. There’s no way around that.Report

    • I agree with just about all of this. My point is just that it’s not the SSM that’s telling the hotel owner to go pound sand, it’s the anti-discrimination laws. SSM merely expands the scope of one of the traits (marital status) that may not form the basis for discrimination – its impact on religious freedom is only at the margins.Report

  14. Avatar Sam M says:


    I understand that. And it’s an important distinction. To me. But I am not sure how much it will matter to people who care about the issue.

    Look. I can throw someone off a bridge and say, “Look. I didn’t kill that guy. I just threw him over a railing. The fact that the railing is 500 feet over a raging river is the result of an architect and an engineer who put that railing so high in the air. Pushing people over railings does not kill people. Putting railings 500 feet in the air kills people.”

    True. Sort of. If they had built a really low bridge and I pushed someone over the railing, that someone would not have died.

    But… so? The fact of the matter is, we live in a larger legal environment. Any new law that we interject reacts according to that environment. And right now, we have anti-discrimination laws, and if you approve SSM, people will not be free to discriminate against gay people because of those laws.

    And truth be told… a major goal of SSM is to make it SO PEOPLE CAN’T DISCRIMINATE AGAINST GAY PEOPLE. It’s not some weird by-product. North, a regular commentor here, has regularly stated that he wants marriage in order to rectify tons of issues, like the way hospitals and inheritance laws treat gay couples.

    But think of it this way. Let’s say someone proposed changing the law to give all robins the same rights as bald eagles. Someone would object: But bald eagles are endangered species, and that will mess all sorts of things up. I won’t be able to cut down a tree in my yard if it has a robin’s nest in it. This seems like a bad idea.

    I guess you could respond: Hey! It’s not the law that I propose that is the issue here. It’s the Endangered Species Act that is causing all the problems! Seems to me that you really have a problem with that.

    Well yeah. But prettly clearly, the ONLY reason you would want to treat robins like bald eagles is because you want to offer robins the same protections bald eagles currently enjoy.

    So you can change the Endangered Species Act. Or… you can just keep the laws the same way they are in the first place.Report

    • Avatar North says:

      Eh? Someone say my name?

      I guess you’re right Sam, some people will have their rights curtailed by SSM. A Mother would lose her right to heave a beloved gay husband of twenty years out of a hospital room to stand on the sidewalk while her son died surrounded by relatives who hate him and who he hates instead (and don’t make me go into the limits of power of attorney agreements again, suffice to say they’re only one lawyer thick). Social crusaders will lose the power to use marriage as a pointy stick to poke gay individuals back into the closet and out of sight with. I shan’t lose much sleep over either of them.

      Now since Mark has thoroughly defenestrated the idea that any churches will be forced to adhere to anti-discrimination laws I hope we can at least agree to lay that boogey man to rest.

      As for private companies and individuals I’m sort of agnostic about anti-discrimination laws now. Maybe anti-discrimination laws need to be narrowed in recognition of how much society has progressed? Despite the social rights best efforts gay people can find places to live, eat and sleep without employing the full force of the law. Personally Sam I’d be content to let private businesses suffer the natural business consequences of turning away clientele based on sexual orientation. I’m not aware of many gay people who genuinely would want to patronize a hostile business if they had any other alternative. So long as tax money isn’t involved personally I’d say go nuts. Maybe anti-discrimination laws need a look under the hood. But the whole issue seems like a side-show to the debate; a red herring even because if you accept the deference that courts (in my view rightly) pay to religious organizations then there isn’t a connection between civil marriage for gay individuals and anyone’s rights being diminished unless you roll in some other additional set of laws.Report

    • Avatar Elizabeth says:

      “And right now, we have anti-discrimination laws, and if you approve SSM, people will not be free to discriminate against gay people because of those laws. ”

      But the point is, you’re already not allowed to discriminate against gay people in many areas because of anti-discrimination laws. There are 2 cases that anti-gays constantly trot out to explain how SSM infringes on religious freedom. Each of those cases do not involve marriage, since they occurred in states where gay marriage is not legal, but rather the pre-existing anti-discrimination law.

      The first example was the New Mexico photographer who refused to photograph the commitment ceremony of two lesbians. New Mexico did not have any legal structure for gay couples at the time, but the lesbians in question were successful after the NM court found the photographer in violation of the state’s anti-discrimination law.

      The second case anti-gays like to bring up is that of a waterfront pavilion that is owned by the Methodist church. The church received a tax break for agreeing to open its facilities to the public. A gay couple requested to use the facilities for a civil union (NOT marriage) ceremony, and were turned town. The resulting lawsuit saw the removal of the pavilion’s public use tax break, since it was not in fact open to the public.

      But ultimately, you’re right, as a gay person I do want to see the end of discrimination, and think marriage is an important step. I think the rights of gay people to live lives free from discrimination should trump the “right” of others to discriminate.Report

  15. Avatar Cascadian says:

    Here’s a fascinating case: (ht Douglas Todd), about a court ruling in Britain on whether Jewish religious schools can descriminate based on the mothers native ethnicity. I think it reflects on this debate.Report

  16. Avatar Sam M says:

    “But the point is, you’re already not allowed to discriminate against gay people in many areas because of anti-discrimination laws.”

    But you are, in others. For instance, businesses are permitted to extend benefits to spouses, but refuse to extend them to non-married companions. Thus, since gay people cannot get married, employers have a way to refuse to extend benefits to gay people.

    Yes. This is really, really bad news for gay couples. And society ought to address it. (Says me, at least.) But in doing that with SSM you are FORCING people to comply, regardless of what their religion says.

    Again, this is fine by me. But it is what it is. Let’s not pretend otherwise.

    And there are a host of other rights that marriage entails. If there were not… WHY WOULD PEOPLE BE PUSHING FOR GAY MARRIAGE?

    There is the idea that this is a larger cultural quest for legitimacy… but when you bring that up, people say, no, it’s just the rights.

    Which is it?Report

    • Avatar Cascadian says:

      Sam, what is extra beyond the rights? I’m married. My partner can’t have children. I want all the rights associated with marriage. But, I feel there’s this extra cultural/religious baggage that I’d rather do with out. Why must I be forced to endorse what is ultimately religious to get all the rights the religious or those that are willing to play along get?Report

    • Avatar North says:

      Well obviously it depends on who you ask. Contrary to Rod and National Review the gay rights lobby is far from monolithic. There are some people who seem to think that getting SSM will somehow force people to accept gay people or consider them legitimate. The idea of course is bull. If the government had the power to shape people’s minds those ways then gay people would have been wiped out ages ago. Still, on the further left where this idea dwells there’s a genuine belief that government does have that power. Oddly enough there’s a similar belief of said government power on the right in the form of the moral crusaders. Just goes to show that if you go far enough around on the circle you end up on the other side.Report

    • Avatar Elizabeth says:

      I think it’s ironic that you keep bringing up employment benefits for spouses, considering that most private sector companies are far ahead of the government in terms of recognizing and providing benefits for same sex partners.

      You’re right though, the extension of marriage (or civil unions or domestic partnerships) would require companies to compensate their partnered gay employees the same as they would partnered straight employees. I’m fine with that, as most corporations are not religous entities, and as religious freedom is not an absolute right in this country.Report

    • Avatar Jaybird says:

      The State has made subjects of us all. No longer citizens, we all have the boot of the government on our throats. No right to privacy, no rights meaning much of anything anymore (“surely the fathers could not have foreseen something like X!”), and what we have now are privileges extended to people by the state rather than rights being recognized by the state.

      Marriage lightens the pressure on the throat by a couple of PSI.

      If the government were nowhere near intrusive on our lives (imagine, if you will, a US where individuals did not have to file income tax), can you see gay people agitating for the Federal Government to recognize their unions?

      It is because the government has a thumb in every pie that people agitate when they hear that some folks have access to a piece with fewer smudgy thumbprints on it.Report

  17. Avatar Mango says:

    There is no religious infringement on Catholic beliefs. We had anti-discrimination laws on the books for a while and Catholics are still allowed to believe in whatever they want: for example, their refusal to ordain women priests. But when it comes to public contracts they cannot disciminate against women where it relates to the contract. So it will be the same with the gays. When the new anti-discrimination law is passed the Church can still believe in their “traditional” marriage but they won’t be able to discriminate against Gays where it relates to the public contract with the city.

    The Church’s claim of religous infringement is a red herring to their real intent of denying spousal benefits to Gays who will be married under the new. No one is requiring the Church to marry Gays, like no one is requiring them to annoint women priests. The Catholic church’s argument here is not genuine.Report

  18. Avatar Lymis says:

    I want to point out a flawed comparison. I see most people, including on this thread, saying that the religious liberty issue is not having to extend benefits to the spouses of gay people, and comparing that to simply giving benefits to the spouses of straight people.

    But that isn’t the actual parallel. A parallel would be the Catholic Church, or (as other argue) private employers who are Catholic, following their belief that civil divorce is invalid, and sending half of an employee’s paycheck to their ex-spouse on the grounds that they believe the employee to still be married, regardless of their civil status. Of course, refusing to allow the civilly remarried employee to include their new spouse and any stepchildren on their insurance would follow logically.

    Secondly, everyone speaks of all these people having to act against their religious beliefs, and that’s where there needs to be a whole lot more discussion. Forcing someone to have gay sex, or forcing them to get married to someone their religion disapproves of would be forcing them to act against their religious beliefs. Filling out paperwork and processing claims? Providing insurance? I don’t know of any religions that prohibit that.

    Where do you draw the line? Sure, with something like Roman Catholicism, where there is a central authority and a documented catechism, it’s cleaner, but does religious liberty only apply to members of large denominations?

    Can an Orthodox Jew deny insurance coverage to employees who don’t keep kosher at home? Can a strict Baptist deny it to someone whose spouse is a dance teacher? Can a Hindu refuse to give benefits to someone who eats beef? And what about people who have strongly held beliefs that God wants them to be vegetarians? For that matter can an atheist deny benefits to believers?Report

  19. Avatar Cascadian says:

    Is there a troll about? I keep seeing comments on the side bar of the main page and then nothing in the thread.Report

  20. Avatar Cascadian says:

    Somthing seems brokenReport