Will Illinois’ Proposed Gay Marriage Law Violate Religious Freedom?

Will Illinois’ Proposed Gay Marriage Law Violate Religious Freedom? November 8, 2013

 

Will Illinois create discrimination in the name of ending discrimination?

Illinois’ bill redefining marriage to include same-sex “marriages,” is on the governor’s desk, awaiting his signature.

Proponents of the bill say that ti will end discrimination against homosexuals. Others are concerned that a lack of exemptions for individuals and small business owners, including one-owner businesses, will allow coercion and a violation of these citizen’s basic right to religious freedom.

One thing that is commonly (and I think, deliberately) overlooked in discussions of this issue is that religious freedom and freedom of conscience are basic human rights.

From The Chicago Tribune:

Illinois’ gay marriage bill that awaits the governor’s signature doesn’t force religious clergy to officiate at same-sex weddings or compel churches to open their doors for ceremonies. But similar safeguards aren’t spelled out for pastry chefs, florists, photographers and other vendors who, based on religious convictions, might not want to share a gay couple’s wedding day.

The lack of broader exceptions worries some who fear an erosion of religious freedoms, even as supporters of the law say it will eliminate discrimination.

“We’re going to have to wait for lawsuits to arrive,” said Peter Breen, an attorney with the Thomas More Society, a socially conservative legal group.

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62 responses to “Will Illinois’ Proposed Gay Marriage Law Violate Religious Freedom?”

  1. It doesn’t have to be this way. Why on earth do Catholics think that there is anything in their religion requiring them to discriminate against gays? If the couple wants to marry, that is their business. If your business is catering, baking, driving a limo, etc. ten do your job and don’t discriminate. How hard can that be?

    • How is it discrimination? Why do the feelings of two people have anything to do with the inalienable rights of a business owner? And don’t use the “race” excuse on me. We are talking about behavior.

      • there are no inalienable rights of a business owner. what are you talking about? business must operate within the confines of the law.
        my religion holds that second cousins may not marry each other, but the government considers it a valid marriage, so I cant discriminate against them.

        • That is where you are wrong. Government should not violate inalienable rights, and, when it does, it means there are no rights the government respects.

        • Bill S & pesq87, you are saying that business owners have no rights. That is equivalent to going to a Kosher bakery and telling them you want to order pies with crust made with lard. No, yo do not have the right to do that.

          • AnneD, I apologize. I made an overly broad statement that was in fact, so broad it is inaccurate. For the avoidance doubt, however, “inalienable rights” are usually meant to mean those rights that cannot be bought, sold, or transferred from one individual to another, like the personal rights to life and liberty guaranteed by the Constitution. I was reacting to your use of the term, and again, I retract my statement: business owners certainly do have some inalienable rights. HOWEVER, again I maintain that a business owner who offers a public accommodation must abide by the public accommodation laws. If I CHOOSE to offer my services to the public, I may not discriminate on certain bases.

            • “For the avoidance doubt, however, “inalienable rights” are usually meant to mean those rights that cannot be bought, sold, or transferred from one individual to another, like the personal rights to life and liberty guaranteed by the Constitution.”

              That hasn’t been true since 1973, mothers have been transferring their children’s right to life to Planned Parenthood for quite some time, and on the taxpayer dollar.

      • I agree with pesq87. As a person, I have certain inalienable rights that I do not have as a business owner. The “race excuse” that you ask me not to use provides a perfect anology. Just as you can’t discriminate against me because of my race, you won’t be able to do it because of my sexual preference either. I don’t know how this poses a problem to you.

        • “As a person, I have certain inalienable rights that I do not have as a business owner. ”

          So like fetuses, business owners aren’t people either. You must give up your likes and dislikes to run a business?

          This sort of blatant heterophobia is the only reason I even care about what gays do.

  2. I’ll say the same thing as I did on twitter. Baking a cake does not signal your approval, it signals your desire to earn money.

    • RC and Bill, I admit I don’t fully understand the position of the bakers. However, I suppose making a wedding cake is much more involved than a simple sheet cake. In some ways, a wedding cake is a work of art. As such, it requires a degree of emotional investment which, say, roofing a house or selling a set of bedsheets does not.

      The same could be said about wedding photography or florists. Their work involves a degree of artistry and personal investment in the wedding. I think that this is the complaint. Bakers, photographers and florists, to some degree, feel they are part of any wedding they assist at or work for.

      If I have that wrong, I hope a wedding photographer, baker or florist will correct me.

      • My hope would be that in the vast majority of cases if a baker or photographer said ‘I will work for you, but I want to be clear and upfront that I do not approve of same sex marriages’ that the people would not hire them. It may cost them other work, but that is sometimes the price of standing up for one’s beliefs.

        • The New Mexico Supreme Court said pretty the same thing in its ruling. They suggested that a public business such as Elane Photography put up a sign stating its religious opposition to same-sex marriage, but also stating that it would provide services to clients getting such a wedding.

          I can see where that would stick in the craw of businesses opposed to same-sex marriage. And I can also see the relevance of the current controversy regarding the Affordable Care Act’s requirement that insurance plans cover emergency contraception. At least two federal courts (one district, one appellate) have ruled that close-held, family-run businesses do have the religious rights of their owners. Other courts have ruled to the contrary, so I suspect the US Supreme Court will eventually need to weigh-in.

          The decision of SCOTUS may have some bearing on the Elane Photography case (and cases similar to it.) The conflict between the principle of religious liberty and the principle of equal protection under the law, and relative weight given to each one, is likely to be up in the air until the US Supreme Court speaks on the matter.

  3. As an Illinois resident, I’m proud that our state passed this law. I do not forsee our legislature granting a special dispensation for people to refuse gay business. I have no doubt matters will have to be sorted out in litigation, but my understanding is that this area is covered under the Illinois Human Rights Act of 2006 (775 ILCS 5). It forbids discrimination in housing, employment and public accommodations on a variety of grounds, including sexual orientation. The way I read it, if you run a business or service which is open to the general public, you can’t refuse to do business with someone because they’re gay. Chicago also has its own ordinance to that effect which has been in force for 25 years.

    • Which is the point. Are we creating a new form of discrimination against people of faith? Remember: Freedom of conscience and religion are basic human rights.

        • “If you boss is Jewish, are they allowed to tell you not to eat pork?”
          Perhaps a better analogy would be “If your boss is Jewish, are they allowed to not serve pork in the office cafeteria?”

          • I disagree. The difference is that the boss isn’t being forced to serve pork, he’s being told he can’t stop other people from eating it. If the bakery decides they want to turn away paying customers, because the owner is a bigot, that’s up to them. Nobody is telling them to serve pork. They’re freaking out because they can’t stand the idea of people eating it.

            • “If the bakery decides they want to turn away paying customers, because the owner is a bigot, that’s up to them. Nobody is telling them to serve pork. They’re freaking out because they can’t stand the idea of people eating it.”
              Actually, I think you’ll find there are quite a few cases now saying that they have to serve pork or face large fines…

            • It’s perhaps also worth pointing out that that the prohibitions on eating pork were only ever meant to apply to Jews, whereas the nature of marriage is intimately tied up to the nature of mankind, and thus applies to everybody equally.

  4. This argument is tired and thin. If you are in a business that caters to people getting married, your concern is operating a business in a competitive field. You’re also subject to the same public accommodation requirements as any other business. It is unlikely that every potential customer will agree with you on every religious belief you hold, and if accepting their business offends your delicate sensibilities you should probably reconsider whether you are in the right line of work.

    Would the same argument hold for other forms of discrimination? If a photographer realised a client was a different ethnicity, would he be right to refuse service? What if the caterer’s religion requires women to cover their head (a common requirement that I’ve heard professed by Baptists, Muslims, and Catholics, and I’m sure there are others), should he be allowed to refuse to provide service when he learns none of the women at the wedding will be covering their head? Doesn’t a room full of naked headed women directly violate his own religious beliefs?

    The particular argument in this article isn’t about preserving religious freedom. It is about nothing more than preserving the privileges of the majority at the expense of a minority. Privilege is power, and if everyone is forced to treat everyone else fairly, the privileged are denied the small, petty degree of power they have always enjoyed. There’s no reason a secular government should validate the choice of one couple of consenting adults to marry while denying another couple of consenting adults the same choice. All the knicker twisting and pearl clutching in the world won’t change that truth.

      • I would say gay marriage changes many things that needed to be changed. What it does NOT change is heterosexual marriage, which was one argument many made, and still do, against it.

        It also does NOT change the definition of marriage for religious communities; the Catholic church can still decide what qualifies as a sanctioned union within the Church and continue to not offer blessings to or acknowledge homosexuals, divorcees, and non-Catholics to its heart’s content.

      • The contention that “gay marriage won’t change anything” does seem to be inaccurate. But calling the statement a lie seems unfounded since it implies that proponents knew in advance of the changes which would occur. I think most proponents are astonished, even bewildered, that bakers, florists and photographers are refusing to offer service due to their religious belief.

      • I would say it changes a number of things that needed to be changed.

        What it does NOT change is the way heterosexual marriage is recognised under the law, as many have and still do instant it will. It does NOT change the way religions or clergy definite marriage within the context of offering blessings and sacraments. What it does NOT change is the way Americans form their families.

        It DOES change the way some American families are recognised under the law, which is the point.

        • The concept of divorce did it already. I don’t see how adding gay marriage won’t affect the concept of marriage for the religions and clergy- all it will take is a single lawsuit to make heterosexuality illegal.

        • “What it does NOT change is the way heterosexual marriage is recognised under the law, as many have and still do instant it will.”
          Erm, yes it does, it changes the legal definition of marriage from “a union of a man and a woman (etc.)” to “the union of two people”. That’s a change. Unless perhaps you want to argue that gay marriage and heterosexual marriage are actually two distinct things, in which case I agree with you, but I think you might have a hard time getting your fellow gay marriage advocates to.

    • “Would
      the same argument hold for other forms of discrimination? If a photographer
      realised a client was a different ethnicity, would he be right to refuse
      service? What if the caterer’s religion requires women to cover their head (a
      common requirement that I’ve heard professed by Baptists, Muslims, and
      Catholics, and I’m sure there are others), should he be allowed to refuse to
      provide service when he learns none of the women at the wedding will be
      covering their head? Doesn’t a room full of naked headed women directly violate
      his own religious beliefs?”

      Refusing to photograph somebody because of their ethnicity isn’t really the same as refusing to photograph a gay marriage, because the latter is an action somebody can choose to carry out or not, whereas the former is something over which nobody has any control. And if somebody’s religious beliefs forbid them from taking photographs of women who aren’t wearing hats, then yes, they should have the right not to take any such photographs.

      “There’s no reason a secular government should validate the choice of one couple of consenting adults to marry while denying another couple of consenting adultsthe same choice”

      I think you’ll find that *any* government recognition of marriage is going to
      necessitate defining it, in which case some combinations will be excluded from
      the state definition whilst others are included.

      • The government can define marriage, or any other contractual or licensed partnership, I don’t have a problem with that. Like any other law, however, it has to apply equally to every person. To get married in my county you have to:

        obtain a marriage license by appearing in person in the county clerk office, showing government issued photo id that matches the name provided in the license application, provide social security numbers to the county clerk, pay a licensing fee, and have a ceremony after a short waiting period conducted by an authorized officiant.

        There are some special rules about people who have been married before and divorced and minors wanting to get married, but there is nothing in those requirements that could not be met by couples of any gender composition, yet my state doesn’t issue licenses to same gender couples.

        The law is applied to people differently based solely on gender. That is the problem.

        • “Like any other law, however, it has to apply equally to every person.”
          And it does: every person is equally able to get married to somebody of the opposite gender.
          (Well, obviously not *every* person: somebody who’s already married, or closely related to their intended, or wants to marry someone who’s under the age of consent, can’t get legally married. Then again, given that nobody seems to raise a fuss about this, it would seem that whilst the law must apply equally to everyone, it must apply more equally to some people than to others.)

          • Mr X, you are not the first person to make the two arguments you stated. But neither one is credible. The first claim is similar to saying a law which restricts marriages to Democrats would be fair, since everyone is free to be a Democrat. Or, it would be like saying that Saudi Arabia has religious equality because everyone is free to be Muslim.

            The second argument is also flawed. Persons who are below the age of consent are being protected by law from exploitation, as they do not possess the maturity or life-experience to make a legal contract.

      • The parallel between ethnicity and sexual orientation, while not in any way perfect, is the wholesale discrimination of a group of people.

        As much as I would love to debate the whole choosing to be gay vs. being born gay, for the sake of this argument I don’t think it matters, what matters is the person’s identity with a segment of society. A photographer refusing to service a Jewish couple or a Hindu couple or a Christian couple because of their religion would be unacceptable and illegal. As would refusing service to French Canadians because they’re foreigners. The point is if you’re offering services to the public you’re offering services to all of the public on the same basis, you don’t get to choose which types of people can contract your business and which types of people cannot.

        • This whole government interfering in people’s private companies business because of some imagined “public accommodation” has really gotten out of hand. I’d rather have segregated lunch counters back than this attitude.

    • Donna, you grossly misrepresent the beliefs of the three religions which you mentioned. But your basic argument is the same which the New Mexico Supreme Court found convincing. If a photographer wants to be a public accommodation, selling to the public, the photographer must abide by the laws which regulate public accommodations. The photographer is free to operate as commercial enterprise which offers its services to a private clientele (presumably members of a club or other private organization.)

      • I agree that my example grossly misrepresents most religions that practice head covering. The people I personally know who practice head covering, each from a different religious background, do so for deeply personal reasons, and would never hold anyone else in contempt for not making the same choice; that is one reason I used that example. Aren’t the people refusing to bake cakes or photograph weddings because it’s against their religion grossly misrepresenting their religion? Maybe I’m wrong on that, it just seems an odd way to love one’s neighbor as oneself, to me.

        If I misread the article I apologize, but I understood that the fear is that businesses that typically provide services in the wedding industry may not be able to discriminate against gay couples under the new Illinois law. I didn’t see where it mentioned private clientele or private clubs, but I suppose that would be one way for these businesses to “safeguard” themselves from gay customers.

        • Hi Donna,
          I have to admit that I was surprised when an innkeeper refused to rent a hall for a wedding reception, but was happy to rent a room to the newly married couple. Then a photographer, followed by a baker, amd then a florist refused to cater for same-sex weddings. I don’t fully understand their rationale, and earlier in this discussion I tried to suggest a rationale. However, I wonder how much of their objection is actually based in religious beliefs, as opposed to simply wanting to be culture warriors. Why would an innkeeper object to renting for a public celebration of a marriage (which had taken place elsewhere) but willing to rent for a private celebration of that marriage? Why would a florist be happy to sell a gay man a bouquet for Valentines Day, but draw the line at selling flowers for wedding? I am left wondering about their motives.

          When I mentioned that businesses had a choice between operating as a public accommodation or operating as profit-making enterprise which caters only to a private membership, I was referring to an option which the New Mexico Supreme Court explicitly stated in its ruling. Whether that same option is available in Illinois, I do not know.

  5. There’s a difference between refusing ALL service to a particular class of people and refusing to participate in a specific EVENT that is inimical to one’s convictions. Say, for instance, you were Jewish and were a staunch supporter of Israel, and owned a catering service. It would not (IMO) be right for you to refuse service as a matter of policy to persons of Palestinian/Arab ancestry who were asking for your services at weddings, family reunions, etc.; but I think it would be well within your rights to refuse to cater a fundraising event for the PLO, Hamas or any other organization that denies Israel’s right to exist. You could also, as far as I know, under current religious freedom law, refuse to work between sunset on Friday and sunset on Saturday (your Sabbath). Likewise there is a difference between refusing to serve gay persons or couples as a matter of policy in ALL circumstances — which I believe would be unjust discrimination — and simply refusing to participate in a same-sex marriage ceremony.

    As a lifelong Illinois resident my biggest concern is not so much about being forced to participate in same-sex wedding ceremonies, as it is about the state officially establishing as a matter of policy that disapproval of same-sex marriage is equivalent to racial or religious bigotry, and that persons who hold such convictions (like myself) are no longer welcome to do any kind of business with the state, to enter certain occupations or ultimately, even to live here. Catholic Charities was already forced out of the adoption business because it wouldn’t place children with same-sex couples in civil unions. How long will it be before, say, social workers, teachers and all state employees (of which I am one) are subject to termination or ineligible to be hired if they have any record of opposing same-sex marriage, or if they refuse to endorse it?

    • Elaine, I think you make some good points. However, as long as your private opinions regarding same-sex marriage does not affect the service you provide as a government employee, I don’t see how those opinions would be relevant to your job. In other words, even if you disagree with same-marriage, as long as you provide the same service to such couples as you provide to traditional couples, I don’t see how there could be any problem.

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