Religious Freedom and Gay Marriage: Are They Intrinsically Inimical?

Religious Freedom and Gay Marriage: Are They Intrinsically Inimical? November 25, 2013

 

Does the First Amendment apply to individual people or only to the institutional church, inside its church building?

This question would have been unthinkable even a decade ago. But that was before President Obama used Obamacare as a method to coerce churches and private citizens in areas where it had never gone before.

The HHS Mandate was the brainchild of a star chamber committee at the Department of Health and Human Services. It was signed by the president. It has the force of law, but it is not a law. It is a regulation, that was not written by elected officeholders who are answerable to the people. In fact, it is in direct violation of public promises that President Obama made to elected officials in order to get the votes to pass Obamacare.

As such, the HHS Mandate was, from its beginning, an end-run around Democracy.

It was and is an autocratic attack on religious freedom by a few people with a vested interest in the outcome.

It also ushered in an era of direct attacks on religious freedom by government such as has never been seen in America since its founding.

One manifestation of this is the demand by gay marriage advocates that the government force one-person business owners to provide services such as cake-baking, flowers and wedding photography for their “wedding” services. They have managed to successfully use the government to coerce people, even in states where same-sex marriage is not legal.

I recently wrote a post asking the if it was possible to have personal freedom of conscience and gay marriage. In other words, is it possible to find a compromise between gay marriage advocates and traditional Christians that would allow both to exist without government coercion? If the response to that post is in any way indicative of the larger culture, the answer is no.

Gay marriage advocates swarmed the post. Most of them got deleted, but there weren’t any serious attempts to even address the issue of how to balance rights. Instead, the combox response to the post devolved down to the question of homosexuals’ “rights” in this matter trumping everything else.

Rather than give up, I’m going to ask the question again. Are religious freedom and gay marriage intrinsically inimical?

To put it another way, are we bound to decades of warfare over this issue in much the same way that we’ve suffered through the abortion debacle? The salient point is that this gay marriage debate comes after forty years of bad blood. This country is already divided in a dangerous manner. Can the government maintain its authority if those who seriously profess Christ come to believe that they have to chose between obeying their government and following their Lord?

The games that certain people in insulated thought communities are playing with these matters are far more dangerous than they allow themselves to understand.

The Supreme Court needs to turn back the HHS Mandate with a clear-cut decision that leaves no questions. Anything less will precipitate a Constitutional crises of generational proportions. Elected officials need to refuse to accede to demands from gay marriage advocates that they use the power of government to force people to participate in gay marriages against their will. We are talking about one-person or small family businesspeople who are being faced with losing their livelihoods if they do not violate their faith. There is no legitimate reason for this.

The questions at hand are not, as some like to claim, questions of civil rights such as that engendered by segregation. They do not pertain to basic matters of accommodation for a group of people who are forced to drink at separate drinking fountains, attend separate schools, sleep in separate hotels and watch movies in separate rooms. We are talking about isolated instances of one baker out of many or one photographer out of many saying they will not participate in a specific event based on their religious belief.

The businesses in question that I’ve read about have routinely served homosexual people. They just do not want to participate in this one specific event because it violates their religious teaching.

In this instance, the shoe of persecution and discrimination is on the other foot. Using the government to force people to violate their faith so that you feel validated is not only coercive, it is bigoted.

Gay marriage advocates have every right to advocate for their position by petitioning their government and working through the courts. But elected officials have a responsibility to honor the Constitutional freedom of religion of all citizens, including Christians.

No government can successfully enforce any law if a committed minority of people refuse to accede to it. That is a fact. The two political parties have manipulated and exacerbated the culture wars in order to get campaign donations and win elections until they have seriously damaged this country and all but destroyed themselves.

The political parties, for all their power and destructive force, are nothing. They do not care about this country or its people. Their silo mentality has contributed to this situation we now face in so many ways I cannot enumerate them all.

Given all this, it takes a person of stubborn hopefulness to ask the question: Can we reach a compromise?

I’ve never thought of myself that way, at least not the hopefulness part. But I’ve always had stubbornness aplenty. It would be easy to say that stubbornness is what drives me to put this question out there again.

However, that’s not true.

I am motivated by the stakes. I know which side I will come down on if I must choose.

I choose Christ.

But as an American, I do not believe that I should have to make that kind of choice. I believe that it is my right — my Constitutional right — to follow the dictates of my faith without government interference.

Which leads me back to the question with which I began: Are religious freedom and gay marriage intrinsically inimical?

Are gay marriage advocates and their allies in government seriously going to force me, and every other committed Christian, to chose between our country and following the Lord Jesus Christ?

 

 

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124 responses to “Religious Freedom and Gay Marriage: Are They Intrinsically Inimical?”

  1. Does the First Amendment apply to individual people or only to the institutional church, inside its church building?

    That this question even needs to be raised is mind-blowing. If the Bill of Rights does not apply in full to individuals, to protect individual rights from he encroachment of the State, then the Constitution is dead and experiment is over.

    How did we get here, Rebecca?

    Related: it’s interesting how the same people (usually but not exclusively on the Left) who hate the idea that corporations should have rights (e.g., the right of free speech) turn around and apply the first amendment protection of religion (not worship) only to institutions (i.e. corporate entities).

  2. Logically, I believe the answer to the “inimical?” question should be NO, because freedom of religious conscience is entirely possible when the offended minority has plenty of other options for goods and services and is not actually being segregated whatsoever. However, Pride will countenance no opposition, even of a passive kind, so I’m pretty sure if these particular zealots can get away with it, the answer to your final question will be yes, choose Christ or Caesar, and if one will not bow to Caesar’s edicts, that one will be forced from the public realm. I do not like this scenario, but it seems to be where things are heading. Unless a massive revival, and I mean a real one, not like the blip after 9/11, sweeps this country. Should that happen, and only then, will we see religious freedom protected as the Constitution lays out. :-/

  3. Can the government maintain its authority if those who seriously profess Christ come to believe that they have to chose between obeying their government and following their Lord?

    Can they prove that their Lord really wants them to discriminate against gays or force their religious beliefs on others by refusing to provide their services to gay or to provide the health care insurance required by law to their employees? Do they have any evidence that such resistance is the will of God?

    If they don’t then they must obey the law or pay the consequences.

    • Wrong Bill. The Constitution (via the Bill of Rights) guarantees freedom of religion–no exceptions, no burden of proof on the individual. In the same way conscientious objectors have long been allowed to refuse military service: we don’t require those whose objections are religious to “prove” their god doesn’t want them to fight. It is only a recent novelty where the Constitution can basically be ignored to force the imposition of the law (rather than the other way around, where the law is subordinate to the rights guaranteed in the Constitution).

      • If you wish to legally oppress human beings, you MUST prove that doing so advances a VALID governmental objective.

        How does denying the rights of LGBT human beings serve ANY purpose other than to stigmatize?

        Seriously dude. You’re so off base here, one might think you view LGBT people as something other than fully human.

      • I don’t think conscientious objector status is analogous to the gay marriage debate, but it should be noted that the government imposes a substantial burden on those seeking CO status. They don’t of course have to prove what their god says on the matter, but they do have to be able to articulate their own beliefs in some detail AND prove to a draft board’s satisfaction that their beliefs are sincere and long-standing. The exemption, in other words, is not guaranteed, and even if it is granted, the man is still liable to serve in either a non-combat role or in some form of non-military national service.

        In no avenue of life or law does the Constitution guarantee absolute freedom of religion. It acknowledges a presumption of that freedom and places a higher burden on government to show compelling reasons to override it, but it has never been understood to bar any law which imposes any burden on any religion.

        • What the First Amendment says:
          Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

          In no place does this say anything about government limiting the free exercise of religion to provide pastries for receptions and photos thereof.

          • You know as well as anyone else, the Bill of Rights is a statement of principles, the beginning, not the end of constitutional law. The Second Amendment doesn’t say I can’t bring a machine gun into a federal courthouse or plane, but that doesn’t mean Congress has no power to enact such limitations.

            In any case, if you’re going to go with an “original intent of the founders” arguement, the First Amendment wouldn’t even apply as things stand now. Originally, the Bill of Rights only applied to the actions of the federal government. It was not incorporated to be binding upon the states until fairly recent times, and all of the disputes involving wedding photography etc. are under state or municipal law.

        • but they do have to be able to articulate their own beliefs in some detail AND prove to a draft board’s satisfaction that their beliefs are sincere and long-standing.

          Ok. So one has to show only that one has a true conviction—a matter of conscience or belief or faith or what have you. One can’t simply “make up” a conviction for the purpose of avoiding service or a tax or whatever.

          I’ll take that compromise. By analogy, it would be very easy for any practicing Catholic (for example) to articulate his/her belief and demonstrate reasonably his/her longstanding commitment to said principals.

      • What language in the Constitution and the Bill of Rights guarantees you the right to discriminate against gays and disobey state and federal laws and regulations. Feel free to cut and paste the words that give you this right.

        • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

          I’d like to think you knew that.

          • What law has Congress made to establish a religion or prevent the free exercise thereof. If you can find one, please show me. If you cannot, then your complaint has no merit. Your religious leaders cannot demonstrate that practice of your religion requires you to stop others who don’t practice your religion from doing something against your religion. Show me one sentence stating that requirement.

            • Congress didn’t pass it, but the HHS Mandate certainly fits that description. If Dale is correct (and I have no doubt he is) then the decision of the New Mexico judge also fits. In fact, it sounds as if his/her language in the decision might have been downright prejudicial.

    • You have been around this conversation too long to need anyone to spell out our evidences, you simply do not believe we are justified in holding to them because you believe our God is a hoax/not who we believe Him to be, and you believe we have no right to have our beliefs effect our actions when you don’t personally like those actions.
      As for “paying the consequences” of not bowing to the anti-Christian powers of this world, the faithful have been doing that since the Church began.
      Pretenders and the cowardly will conform because they can’t bear to lose their possessions or popularity, which has also always happened. But those who count their Lord more dear than the fleeting goods of this world will do as we’ve always done, which is to accept (when no other option is present) being stripped of our property, our rights, and our dignity so that we may walk into Eternity with our souls. That is why no despot, from Nero to Stalin, has succeeded in wiping us out in their land, nor will those here in America who seek to do so succeed, either.

      • The anti-Christian powers of this world?

        Is that how you view those who do not tolerate your anti-gay discrimination. You talk as if you are the one taking the moral high ground.

        • You as well talk as if you are taking the moral high ground. From our perspective, our way is right, so why should we cede what is rightfully ours? I would not expect a same-sex marriage supporter to talk as if his was the inferior position.

          • Nobody’s expecting anyone to speak as if their viewpoint is inferior. Likewise, the question is not moral superiority. The issue is freedom of religion and conscience vs government coercion. As I said a moment ago, whatever happened to “if you don’t support gay marriage, don’t get gay married?”

          • To take the moral high ground, you should do to others what you would have others do to you. Would you have others discriminate against you? No? Then don’t discriminate against others.

              • I believe that Christians have their marcing orders. Do unto others as you would have others do unto you. You wouldn’t want someone to impose their taboos on you. Don’t impose yours on them.

                • Bill, you have your personal struggles with homosexuality and Church teaching all scrambled up with the law. I know it’s difficult for you, but they are not the same.

                  • Catholics should not discriminate against gays. The fact that they do does not speak well to their supposed commitment to do unto others as they would have others do unto them. I am not the one with a problem. I don’t discriminate against anyone.

                    • How do Catholics discriminate against gays Bill? By refusing to go along with the delusion that two men or two women are the same as a man and a woman? That’s not discrimination, that’s stubborn sanity in an insane world.

  4. Rather than give up, I’m going to ask the question again. Are religious freedom and gay marriage intrinsically inimical?

    Although I think that gay marriage is an absurdity, I do not think they are intrinsically inimical. But that is because I don’t believe that marriage is a “right”, at least not as rights are understood historically in the US. Marriage from a civil perspective is nothing more than recognition of a special status. I don’t have a “right” to “be married” or to “get married,” though one could argue under the fourteenth amendment that so long as me and my spouse qualify under whatever terms the State sets out for marriage, our union should be so recognized. But in no should that force *individuals* from recognizing the same union. Nor should it preclude individuals from recognizing as married any coupling that the state does not recognize. If Bill wants to “marry” his hamster, the local innkeeper should be allowed to recognize that marriage and give him the newlywed discount on the bridal suite. On the other hand, *I* shouldn’t have to recognize such a marriage.

    In other words, freedom of religion and gay marriage are not inimical; they are simply on separate planes and intersect (or at least *should* intersect) only tangentially inasmuch as this or that individual will recognize a gay marriage, or this or that civil authority will recognize a gay marriage. Bun in no way should gay marriage or any other civil construct trump the Constitutionally guaranteed inalienable *right* of freedom of religion, vouchsafed in the First Amendment.

  5. “Are religious freedom and gay marriage intrinsically inimical?”…….

    Yes. I believe they are, as the question is currently understood and outlined by both sides. If religious freedom is contingent on a right to refuse public accommodation in commerce to gay people, even in “rare instances”, that is a non-starter in negotiation, and there will be no compromise.

    At some point, all rights and freedoms are inimical to each other. The ability to exercise one right will, sooner or later, necessarily constrain the exercise of another. Sorting that out is largely a judicial function, but also one which derives from the other branches and the social consensus at large. The consensus for 50 years has been that the right to accommodation in public business outweighs the consideration of the freedom to refuse such service, for reasons either profound or trivial.

    I do not see courts laying that aside to accommodate religious freedom in the form of an exception to civil rights statutes. I could be wrong of course, and time will tell. I can say with confidence that gay men and women and their supporters will not relinquish their claim to equal access for the sake of a truce with an opposition which has vowed to never accept any form of detente with civil gay marriage in any aspect.

    There will be winners and losers on this point, and it will become an irreconcilable matter of conscience for some, and civil disobedience.

      • On this point of public accommodation, yes. It’s my honest read of the situation, and my position. All people who stand for anything have a moral bottom line on any issue, a principle which they see as non-negotiable. I see the public accommodation provisions of civil rights laws as one of those non-negotiables because I believe they go to the core of human dignity and what our country stands for. I find it regrettable that it would come to coercion, but all laws ultimately carry that possibility. If they did not, they would not be laws. They would be meaningless exhortations. All of this is rooted in my own interpretation of the law and my prediction of how our courts will approach the question. The question of the exact balance point between religious freedom and the rights of gay people in public accommodation will be put before courts many times before the matter is settled.

        • We are not talking about public accommodation. That is not at issue.

          Homosexuals have no problem with public accommodation. They can go to any movie, eat in any restaurant, walk on any street, attend any school that they want. This constant pretense that demanding that people who willingly service homosexual people in other areas but who do not want to be coerced to provide services for one specific event which conflicts with their religious beliefs is somehow equivalent to what African Americans suffered during segregation is not only tiresome, it’s insulting to the whole struggle for racial equality in this country.

          It is also bogus.

          What you are wanting is to slam-dunk the First Amendment and the rights of free Americans to use the government to coerce people to participate in a specific event.

          This has nothing to do with issues of accommodation, and is not applicable to civil rights (except, perhaps, for the civil rights of the people you are trying to use the government to coerce.)

          What is your real motive?

          • My real motive is that I happen to truly believe this is a matter of public accommodation civil rights. I believe that when someone hangs out a shingle for a good or service, no one should ever have to face the indignity of being told “your money is no good here.” The fact that there may be no shortage of other places willing to take the money is irrelevant to the underlying issue, in my mind. A civil right qualified by an asterisk ie “just this one thing”, is rendered meaningless. Civil rights in the form of public accommodations laws means a person cannot be turned away because of who they are, period. Refusing gay wedding business is refusing to do business with someone because of who they are. The problem with the event is rooted solely in the fact that they are gay.

            I don’t happen to believe the First Amendment guarantees a right to an exception from public accommodations law in commerce. To the extent courts concur, yes, I do advocate coercion in the form of ordinary enforcement of public accommodation laws to accomplish this. I don’t expect most of you here to agree with my position, but these are my “real motives” as clearly as I can explain them.

      • Where does the compromise start since you believe gay marriage doesn’t exist?

        Your post talks about opponents and adovates. People and families are what matter.

        • In what way do “families” have anything to do with forcing people to prepare a cake or take a photo when it’s against their faith? Whatever happened to “if you don’t favor gay marriage, don’t get gay married?”

          • Gay people have moms, dads, siblings, grandparents, aunts, uncles, cousins and some have children. Families has everything to do with this issue.

            I don’t know what the answer is for providers of services. I really don’t. I don’t think it’s right to make someone do something they don’t want to do.

            On the other side, I don’t think it’s right to tell people they aren’t married or that their marriage doesn’t exist when the government and the couple recognizes they are married. It’s insulting, mean and denying reality.

            Rebecca, I really respect you and think you are very smart. Your posts on gay marriage are not becoming to you. I don’t understand the point.

            • The point is that whether or not it’s mean or smart or whatever to think or feel something is really beside the point. The question here is about when government force should be used against private citizens. Government force. Let me say that again: Government force.

              If the government starts forcing people to do things based on whether or not it decides they are mean or rude, then God help us all. That is absolute tyranny. The question is how to balance private freedom and government force.

              I don’t know how to say it anymore plainly. The government has no business telling mom and pop businesses that they have to bake a cake for people who can buy a cake 10 different other places down the block. That is not a legitimate use of government force against the private citizens of this country.

              There is such a big difference between permissive and coercive law, and what we are talking about is coercive law based on nothing at all. There is no segregation here. None. Zip. Nada.

              I respect you too, Sus. I just don’t think we see the issues the same way. You’re all about private feelings (which is fine) but private feelings are not a reason to enact coercive laws against a whole population.

              Here’s a simple for-instance. What if I passed a law saying that Jewish/Muslim/Atheist jewelers have to sell crucifixes, that they are discriminating if they don’t?

              Now many Jewish/Muslim/Atheist jewelers do sell crucifixes, which is their choice. Also, crucifixes are freely available all over town, indeed, in every town.

              But I am a Christian and I want everyone, everywhere to validate my faith. So I use my considerable legislative powers to pass a law requiring that all jewelers, be they Jewish, Muslim or Atheist, must sell crucifixes. These jewelers are only too happy to sell me anything else they have.

              I can also shop for anything, anywhere and avail myself freely of all the rights and privileges of citizenship. I am not subject to anything even vaguely resembling what African American people faced with segregation.

              But I didn’t ask to become a Christian. I was just born with this longing for God. And, after all, African American people needed a law passed to provide for their public accommodation based on this segregation thing and that clearly equates to my “right” to buy a crucifix from Jewish/Muslim/Atheist jewelers, whether they want to sell me one or not.

              So, I want a law that will put them out of business if they don’t provide me with my crucifix. Not only that, but I will troll various jewelers, looking for someone to refuse me my crucifix so I can yell “discrimination” and do an arm-waving bit about my “rights.”

              That’s basically the same thing we have here with the big cake-baking “human rights” question. It’s bullying and attacking other people over sham discrimination when no discrimination exists. It is also a violation of the rights of the people being attacked.

              • The problem with your analogy is that it presupposes that someone is being forced to provide a service they otherwise would not. In fact, the jeweler in your case, if they are to be analogous to the wedding photographer, is already selling crucifixes. The problem comes in if they refuse to sell YOU one because of your faith. If that happened, your rights would be violated, and I’d go to the mat for you on that. Well, I’d at least pen a friend of the court brief and donate my vast fortune of laundry change to your litigation fund :). Your rights would have been violated in such a case even if the jewelers agreed to sell you all of their other wares and if you had 20 other perfectly good jewelers on the same street offering you crucifixes at half prices.

                I propose a better analogy: We can envision a gay baker or caterer who just decided they hate all Christians and everything to do with the religion. We don’t have to imagine too hard. You probably have one or two candidates in your inbox somewhere. So one day you decide to try to hire them to handle your nephew’s First Communion. They refuse on the grounds that the nature of the event, ie, it’s religion, offends them.

                They say they’ll sell you the cake or do the luncheon for anything else in your professional or ordinary capacity – birthdays, fundraisers, what have you, but nothing that’s going to further or endorse your religion. You’d have a discrimination case, at least in New Mexico, Illinois, and any number of other states and cities. You might decide it’s not worth your time to fight it, but you’d be in the right if you did, and you wouldn’t have to demonstrate that your situation was equivalent to a black man in Old Dixie.

                • You are reaching Ken, and it shows. What can’t you just admit that wanting what you want is no reason for the government to use their massive force against other citizens?

                  • You mean why don’t I “just admit” that my arguments have no merit? If I believed that, I wouldn’t have wasted my time writing them, your time moderating them, or anyone’s time to read them.

                    In the context of what’s happening in places like Syria and Egypt, I think it’s a stretch to call the enforcement of business law through civil fines a use of “massive force.”

                • I think your analogy of the gay atheists denying a Christian a cake for a first communion celebration is a good one. If we take it a step further, to the point that the gay atheists are fully of the “Religion is harmful to individuals and to society” belief, then I think it’s pretty close to the motivations many Christians have in refusing services for same-sex weddings.

                  I also agree that, in many jurisdictions anyway, it seems that discrimination lawsuits could be brought on exactly this basis.

                  That said, I think we disagree on whether the law should support such suits. When the law compels someone to behave in a way contrary to his/her conscience, without certainty and clarity that the objecting individual is him-/herself acting wrongfully, then it is the law that is unjust. Unjust laws should be changed, because law is at the service of justice.

                  This, I think, is why same-sex marriage advocates are so insistent about their cause: because they are trying to establish certainty and clarity about the supposed harmful discrimination of those who hold to traditional marriage. But that has not been established, and philosophically I don’t see how it ever can be.

            • Sus, don’t you get that the government can’t legislate reality? If the government recognizes me as a dolphin, does that mean someone is insulting or mean if they deny that I am a dolphin? If the government declares that, under penalty of death, all must affirm that the Washington Redskins won the Super Bowl last year, does that mean they won it?

              Some of us realize that marriage is a reality in itself, and we can’t just declare it to be whatever we wish it to be.

              • Insofar as marriage is concerned, the law does create reality. If you are legally married under the law, then you are married in reality no matter what any other person or any other religious entity says.

                Your dolphin and football analogies are just bizarre.

          • Whatever happened to “if you don’t favor gay marriage, don’t get gay married?”

            That was before public opinion shifted, and gay people started to have their feewings hurt.

      • hamitlon-yes, bigots must be forced-just like in the 60s with blacks-theyll get used to it or die off-it always works out

        • I’m going to say this once as a point of edification. Calling other people bigots simply because they have different ideas than you will always get you deleted on this blog.

          • Just as children raised to believe blacks are inferior to whites must unlearn what they are taught so as not to grow up to be bigots, so must Catholics unlearn what they have been taught about gays lest they be bigots in their own right. If the shoe fits.,,,

            • Fortunately, Catholics are not brought up to learn that gays are inferior to anyone else. We are all sinners, and yet we are tempted to different sins. There is almost nobody who is not tempted to some sort of sexual sin, whether rarely or often. These temptations are not sins in and of themselves.
              However, it is a sin to cooperate in another person’s sin, and this is the reason these issues have come up.

              If, on the other hand, you are waiting for the Church and God to redefine certain sins as not being sins, you will be waiting a looooooooooong time, i.e. for all eternity.

    • “At some point, all rights and freedoms are inimical to each other. The
      ability to exercise one right will, sooner or later, necessarily
      constrain the exercise of another.”

      How so? What does right and freedom even mean in this case? Do I have the right to breath, which prevents another from exercising the “right” to choke me?

      Are rights and freedoms mere social constructs, or are they endowed to us by God? If the former, then why should I care for any rights except those of myself and those I favor? If they are endowed by God, how are they in conflict? Or do you hold to some third possibility?

      • Unless your god is the Almighty Dollar, I don’t see how operating a for-profit business that sells goods and services to the public in exchange for monetary compensation qualifies as an act of religious worship.

  6. Well we need a King Solomon on this one. What is needed is to be able to establish when someone opting out of supporting gay marriage is legit or not. For instance, a gay couple walks into a studio and wants their family picture taken. I think the photographer is obligated to carry out their requests. Now if the same photographer is asked to cover a gay wedding and he physically needs to be there, I believe he should be able to decline on his religious beliefs. Is there a way to articulate the difference into words? I’m finding those words hard to come by.

  7. Lastly, the notion that gay people are going to be denied some or other service *because they are gay* is asinine. In every case, the shop owner (or whatever) has not approved of same-sex marriage, but has not said anything about same-sex people. They do not deny selling a cake to Bruce the Gay Guy; they don’t poll people about their sexuality at the door. They simply do not wish to participate in the celebration of an activity that they object to strongly on religious grounds (think First Amendment). It’s about actions not people.

    If I own a cake store and don’t believe in same-sex marriage, and two women come to me to buy a cake specifically for the purpose of celebrating their same-sex wedding marriage, how do I know if they are gay or heteros looking to cash in on some government benefit. I don’t know and I wouldn’t care. But I should have the right not be forced to make such a cake because such a union goes against my religious convictions.

    By analogy, what if a longtime far lefty cake shop owner refused to make a cake for a person who wants to throw a party celebrating the victory of a Republican president? I would think that s/he has the right to deny that service to that individual. Moreover, I would have no problem with a pro-gay marriage cake shop owner refusing to make cakes for non-gay marriages. It’s all part of the same principle.

    • I agree that there’s a distinction between the objecting to an act (gay marriage) and discriminating against a person (gay persons). I’m not sure your Republican victory celebration is a good example, though, because I don’t think any reasonable person would consider that celebration intrinsically immoral.

      Those who refuse to participate in gay weddings do so (in every case that I’m aware of) on the basis that same-sex marriage is intrinsically immoral. In other words, they consider that participating would not be contrary to their opinion, or helping someone they don’t like, but rather would be committing an evil or sinful act themselves. They believe it to be morally wrong.

      A better analogy might be something we all agree is morally wrong. Let’s say a member of some culture that, among its other features, engages in “honor killing” – could be Muslim, but this practice is not exclusive to Islam – comes into your sporting goods store to buy a knife. (Please note, I am not trying to equate gay marriage with honor killing; I am simply looking for an example of something we can generally agree is wrong, and that is also an act considered normal for an identifiable group of people.)

      It would be discrimination against a person to simply refuse to do any business with that person. However, if that person explains that the knife will be used in an honor killing, it should not be “discrimination” to refuse to sell the knife in those circumstances. The objection is not to the person, nor to the cultural group to which he/she belongs, but rather to the specific act. Moreover, the objection is that the act is itself intrinsically immoral.

      This is the basis of defenders of traditional marriage objecting to even remote participation in same-sex weddings: that the act is itself immoral. The root of this is, I think, a disagreement about what constitutes “marriage”, and I’m not sure if supporters of same-sex marriage and supporters of traditional marriage will be able to find common ground on this point. But I hope that supporters of same-sex marriage can understand why traditional marriage defenders take the issue so seriously.

      • It would be discrimination against a person to simply refuse to do any business with that person. However, if that person explains that the knife will be used in an honor killing, it should not be “discrimination” to refuse to sell the knife in those circumstances.

        Roki, I am not sure that either of those two points are true. A business is free to discriminate against anyone, unless the discrimination is based upon a characteristic specifically identified in the law. In this case, religious discrimination would not be occurring because “honor killing” is not part of Islam. Moreover, if the business were to sell the man a weapon, knowing he intended to use it to kill someone, that business would be an accessory to murder. So selling him a weapon would be illegal.

        The distinction you made between protected status, and conduct closely correlated with that status, was explicitly rejected by the New Mexico Supreme Court. In support, it cited the US Supreme Court ruling in Christian Legal Society v. Martinez
        http://www.adfmedia.org/files/ElanePhotoNMSCopinion.pdf

        • I’m making a moral argument, rather than a legal one. I don’t know how the law reads in various jurisdictions, but I think you’re right in most cases that only “protected classes” are legally protected from discrimination.

          That said, I think you make my very point that it doesn’t matter whether someone is part of a protected class or not: if their intent is to do something wrong, then providing the means to do so makes one a participant in that wrong act.

          The distinction between status and conduct is a tricky one; after all, it is also the argument that Christians are making: that our status as Christians implies that we must conduct ourselves in certain ways, such as caring for the poor or refusing to bow to idols or evangelizing our neighbors. I honestly don’t know what a proper legal solution to our current situation would look like. I haven’t had time yet to read the CLS v Martinez ruling you cite, but I will as soon as I can. Thanks for the link!

          Most of all, I am bewildered at the lack of understanding, apparently the lack of desire to understand, I find within this debate over same-sex marriage. It is as if all that matters is choosing sides, with no consideration over why one side or the other is chosen. There is no possibility of justice without understanding.

          • Most of all, I am bewildered at the lack of understanding, apparently the lack of desire to understand, I find within this debate over same-sex marriage. It is as if all that matters is choosing sides, with no consideration over why one side or the other is chosen. There is no possibility of justice without understanding.

            I totally agree. Sadly, such unreasoned anger and shouting drowns out rational discussion at many online sites. The comment section of this blog is heavily moderated, which can be frustrating at times. But good moderation allows conflicting ideas to be discussed without being drowned by the invective which is all too common.

  8. If your conception of “religious freedom” includes the right to ignore a civil rights law that requires public accommodations to serve the public in a nondiscriminatory manner, then yes, religious freedom does conflict with marriage equality.

    • Refusing to serve the public has never been illegal and it should not be. When a whole group of people, such as African Americans, are subjected to discriminatory practices that rise to the level of segregation, then that is a question of civil rights. Telling someone that you do not want to bake a cake for their wedding does not and should not. There is a great deal of personal narcism in this attitude that whatever you want is a civil right that must be enforced on other people by the government.

      • It appears you’ve missed my point. When someone applies for and receives a business permit from the state that allows that person to operate, the business owner necessarily agrees to abide by all laws that regulate the operation of that business.

        If there is a law that states that businesses may not discriminate against the public on the basis of sex, religion, race, sexual orientation, etc., then the business owner may not discriminate on those bases. Claiming to be exempt from a civil rights law because one is a Christian and is therefore not bound by such laws is not going to fly in court.

          • Rebecca, what Rakihi described is basically the ruling of the New Mexico Supreme Court. It specifically stated that if a business wanted to operate as a public accommodation, it had to abide by the laws which regulate such things. As an alternative, the business could elect to serve only a private clientele (presumably the members of a club, or some such thing)

            Of course, the state legislature could presumably establish a right of religious liberty in the public accommodations law. The NM Supreme Court was ruling on the current law.

            • I haven’t read that decision Dale. If it’s what the court wrote, then they’re most likely legislating rather than adjudicating. That’s a problem with courts.

              • Rebecca, I agree that if a judge is legislating from the bench, then it is something which needs to be addressed. But it seems the NM Supreme Court was ruling on a conflict between rights under NM law and rights guaranteed by the Constitution. We look to the courts to resolve such conflicts.

                The concept of “public accommodations” is central to your disagreement with Rakihi. If I understand your position correctly, you believe this concept should not be enshrined in law. I am not a legal scholar, so may have this wrong, but I believe the category of “public accommodations” was first established by the federal Civil Rights Act of 1964. Specifically, Title II of that act defines “public accommodations” to include businesses involved in commerce. Commerce, in turn, was defined broadly so that the constitutional clause about interstate commerce would allow the federal government to intervene in prohibiting the pervasive discrimination against African-Americans in such things as housing, employment, shopping etc

                The federal concept of public accommodations/commerce was necessary to overcome state laws which enforced racial discrimination. These laws no longer exist. So is the concept of “public accommodations” still necessary? I think you are saying that individual businesses should be free to discriminate as they choose, and the marketplace will resolve the matter via lost business (due to boycotts, bad publicity, etc.) Am I understanding your position correctly?

                • Dale, you are at the advantage here, since I haven’t read the decision. However, if gay marriage is not even legal in New Mexico, then I don’t see how a judge who adjudicates in favor of it could be doing anything other than legislating from the bench.

                  • The case had nothing to do with being in favor of gay marriage or mandating or even endorsing it. The request to photograph a same sex ceremony was at the center of the case, but the issue turned on the New Mexico Human Rights Act, which was amended in 2003 to include sexual orientation as a protected class.

                    At issue was whether that public accommodations law as applied to the photographers violated their First Amendment rights. The court found that it did not and laid out its reasoning rooted in precendents from SCOTUS etc. Any of us, and of course possibly the U.S. Supreme Court may take issue with the legal reasoning and conclusions, but the New Mexico court was not legislating from the bench or doing anything improper.

                    I don’t know your policy on posting links, but if you can see clear to do so, this one is the full text of the Elane case. Wherever any of us stand on this, I think we can all agree that any discussion/argument will be more productive if we understand what courts are actually saying about this issue rather than speculation or purely philosophical arguments about what should happen.

                    http://www.nmcompcomm.us/nmcases/nmsc/slips/SC33,687.pdf

            • It would be well worth everyone’s time here to read Elane Photography v. Willock. It will probably serve as a precedent for many other such cases.

            • Albuquerque and New Mexico were passing anti-discrimination statutes back when the Bible Belt was digging in to defend race segregation by almost every means possible. So, we’re not use to hearing “We don’t serve your kind here.”

              • Gregory, thank you for posting about Albuquerque’s anti-discrimination history. It sent me off to learn more. Although I could not find the actual text of the 1952 law, I did find this on the city’s official history page:

                Using a Portland, Oregon, anti-discrimination ordinance as a model, Herbert Wright, the first Black UNM student body president, and George Long, then a UNM law student, worked for two years to write the Albuquerque Civil Rights Ordinance that prohibited discrimination in places of public accommodations, enacted by the city commission on Lincoln’s birthday in 1952. The students had formed a coalition with off-campus organizations including the NAACP, the Ministerial Alliance, and the G. I. Forum, labor unions, and the Catholic Archdiocese to enactthe first civil rights ordinance in the intermountain west.

                http://www.cabq.gov/humanrights/public-information-and-education/diversity-booklets/black-heritage-in-new-mexico/the-civil-rights-era-in-albuquerque

                This indicates that the legal concept of “public accommodations” predates the Civil Rights Act of 1964. Although Portland voters rejected the law on which Albuquerque’s was based, the state of Oregon adopted a similar law in 1953.

                The concept of “public accommodations” seems rooted in English common law, but was narrowly applied. Its definition has expanded, in a herky-jerky manner, within US laws (principally at the local level.)

        • This begs the question as to whether a “state” has a legitimate right to tell someone that they are not allowed to engage in business in order to support themselves and to basically stay alive, unless they do what the state says, especially when the state requires them to violate their conscience.

          • I’m afraid you’ve completely misunderstood the issue. Civil rights laws do not prohibit anyone from engaging in a business in order to earn a living. Quite the contrary, they help ensure equal opportunity and a level playing field by requiring that no one is unfairly shut out from fully participating in ordinary civic life. The right of states to regulate commerce within their borders is simply indisputable.

      • Rebecca, I understand what you are saying and believe that discrimination because of religion or race are wrong. But, if business owners want to turn down business why does the busybody government have any right to tell them how to run their business?

  9. I think that your experience in asking this question repeatedly and the non response to the question is your answer.

    At this time and in this culture of anger and grievance mongering, the answer is NO.

  10. Note: I delete posts that begin by taking potshots at others on this blog, including griping at me; also posts that vilify or attack Jesus, Christianity, the Catholic Church, the Pope, or that any other person, including comments that derogate homosexuals.

  11. Conflicts between constitutionally guaranteed rights is nothing new. This does not mean that the competing rights are inimical to each other. It simply means that a balance between the two needs to be found, and this balance is often found through the courts. For example: freedom of the press vs. the right to a fair trial or states rights vs equal treatment under the law. No civil right is absolute.

    Finding the balance between religious liberty and its conflicts with other rights is tricky. It always has been. The courts are currently working though that issue with regard to the Affordable Care Act (Obamacare.) The solution they find may have application to the controversies regarding same-sex marriage. One possible avenue has been endorsed by a federal district court and by a US appeals court: It would allow a business which is closely-held and has a history of operating with reference to religious principles to have the some protections of religious liberty as its owner. Hobby Lobby would be an example of this, and I can see how the New Mexico photographer might also qualify if the owners of that business had previously made clear its Christian character. However, I am not sure if that photography business had actually done so.

    Another possible solution might involve defining what constitutes third-party participation in an activity such as a wedding. I think a photographer, who must be present and actively taking pictures, could reasonably make such a claim. However, I am not sure a baker, asked to make a wedding cake, could make the same claim. However, this seems an ill-defined notion and I am not sure it could be clarified, other than on a case-by-case basis.

    Can we establish a balance between conflicting rights? Of course, doing so is standard in the US. What exact form such a balance will take is hard to predict and may be messy,

      • Because they declare sexual attraction to be equivalent to race. My question is, if sexual attractions are sacrosanct, cannot be questioned, and must be accommodated, by what right do we condemn pedophiles?

        If it is just because the majority say so, then we are in deep trouble. As we have seen, what the majority says for 10,000 years, it may not say tomorrow. We are in an era of unprecedented insanity.

      • Anne, the direct conflict is between religious liberty and the anti-discrimination laws. Indirectly, the conflict is between religious liberty and equal treatment under the law.

        For example, New Mexico law forbids public accommodations from making “a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap”
        https://law.justia.com/codes/new-mexico/2006/nmrc/jd_28-1-7-bcb3.html

        New Mexico law defines public accommodations as: “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private”
        https://law.justia.com/codes/new-mexico/2011/chapter28/article1/section28-1-2/

        Equal treatment under the law does not allow for exceptions, except where explicitly stated. New Mexico law, for example, allows discrimination with regard to mental disability when it comes to housing, if the mental disability would prevent the individual from maintaining the property.

  12. “To put it another way, are we bound to decades of warfare over this issue in much the same way that we’ve suffered through the abortion debacle?”

    Abortion is always going to be controversial, because it involves life and death and philosophical questions of the nature of humanity and consciousness that can never be definitively answered.

    I see the trajectory of the marriage equality debate more like miscegenation; it invokes a great deal of passionate opposition from certain groups, but there’s no logical reasons to oppose it and justice is clearly on the side of those seeking to wed. Public opposition to it will fade quickly in the future, as it has faded quickly over the last decade or so, and in twenty-five years’ time or so opposition will no longer be a mainstream position anywhere.

    • Andrew, I agree that most opposition to same-sex civil marriage will fade away. It may take two generations, but it will happen. Some religious communities will also perform same-sex marriages, however others will remain adamantly opposed to the idea. The Catholic Church is in that latter camp.

      I am not sure that the changes in public attitudes will eliminate the conflict between religious liberty and anti-discrimination laws which are based upon the concept of public accommodations. Although many Christians will not object to participating in a same-sex wedding, some will continue to do so based upon their religious faith. Perhaps a good comparison is the controversy over the contraception mandate in the Affordable Care Act, The overwhelming majority of Christians (including Catholics) are not bothered by it,. Indeed, most Christians (including Catholics) are not bothered by contraception at all. However, some Christians strenuously object to being forced to pay for contraception provided to their employees. because they object to contraception on religious grounds. Those cases are currently working their way through the courts.

      • Actually, I think that it will be a lot like abortion. At first, it will seem like a good idea, then what we’re sending around will come back around and there will be a big re-think. It will take time, but this experiment in lying to mother nature will not work in the long haul.

        • I don’t see how abortion and marriage equality are even remotely similar.

          Abortion remains divisive more than 40 years after the Supreme Court’s decision in Roe v. Wade because the negative consequences of an abortion are real, concrete and impossible to ignore. There’s no getting around the fact that an abortion terminates the life of an unborn child. Someone who views abortion as tantamount to murder is unlikely to ever acquiesce to it remaining legal.

          Whereas pro-life advocates can wave enormous placards showing a bloody fetus to get their point across, what can those who oppose marriage equality do, wave around pictures of loving gay couples on their wedding day?

          Forcing people to confront the reality of what an abortion is has always been among the pro-life movement’s most potent weapons. On the other hand, actually knowing and loving gay persons and couples has always been the most powerful in changing the hearts and minds of those who once opposed marriage equality.

          It is simply inconceivable that forty years after the U.S. Supreme Court strikes down the remaining anti-marriage laws and constitutional amendments that now exist in a little over 30 states, there will still be a widespread movement to reimpose such laws.

  13. Well, Rebecca…after reading the comments, it looks like the answer is a resounding “NO!” The need of homosexuals to be validated in their “union” outweighs religious freedom.

    The homily we heard last weekend at our large, diverse Catholic parish told us to prepare for imprisonment and even martyrdom in the years to come – if we are willing to insist on following Christ as our King rather than the almighty Feds and/or the almighty dollar.

    After reading the comments here, I have to say it seems pretty realistic. The leading edge are the folks being forced to provide services for a single event which deeply offends their conscience. Even that cannot be tolerated. The Constitution is being eroded away…

    As you mentioned, this is deeply narcissistic, and our culture is becoming, by and large, a co-dependent culture. It’s not a surprise, though. Once people basically accept that they can define their own reality, the game’s up. For example, a male can declare themselves to be a female and people are expected to go along with it, rather than have this person receive a psychiatric evaluation.

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