I keep saying that defining gay marriage as a constitutional right is going to have enormous consequences for religious liberty. David Benkof writes in the Seattle Post-Intelligencer that gays and lesbians in California gained nothing substantive in their recent state Supreme Court victory (because California already granted them all the legal privileges of marriage), but managed to do serious harm to religious freedom. How so? From Benkof's column:
Although California marriage-equality leaders won't say what impact they expect the new decision to have on religious freedom, activists in other states haven't been so shy. Openly gay Washington state Sen. Ed Murray, D-Seattle, and a representative of the largest Michigan gay-rights group, the Triangle Foundation, have both told me that people who continue to act as if marriage is a union between a man and a woman should face being fined, fired and even jailed until they relent.So if a traditionally religious business owner wants to extend his "marriage discount" only to couples married in his eyes, the Triangle Foundation's Sean Kososky says, "If you are a public accommodation and you are open to anyone on Main Street that means you must be open to everyone on Main Street. If they don't do it, that's contempt and they will go to jail."
Seattle's Michael Taylor-Judd, president of the statewide Legal Marriage Alliance, said if a newspaper writes that a given same-sex marriage wasn't really a marriage, "it is certainly in the realm of possibility for someone to bring a (libel) suit, and quite possibly to be successful." Kososky agreed: "I would be sympathetic to some damages. They need to be slapped publicly."
Sharon Malheiro, a lawyer and LGBT activist from Des Moines, Iowa, affiliated with the state's gay-marriage lobby, ONE-IOWA, told me if a teacher in a marriage-equality state taught that marriage is between a man and a woman, "then it becomes a job performance issue" and the school district should take appropriate action.
Now, nobody gay in history has lost his assets, his job or his freedom for writing, teaching and running a business guided by his belief that marriage is a union of any two individuals who love each other. So why do gay activists support limitations on the freedom of speech, the media and religious expression for anyone who disagrees with them?
I'm reasonably certain that the First Amendment would offer pretty significant protection to speech; it would be highly unlikely, for example, that a libel suit as suggested above would succeed. But the activist above has a point about public schools. Here's what the the Gay, Lesbian and Straight Educational Network (GLSEN) wants to see in schools:
GLSEN believes that learning about the diversity of humankind is an essential part of education in a democratic society, and affirms the right [Emphasis mine -- RD] of students to learn in classroom environments that nurture diversity. GLSEN encourages schools to allow students in all grade levels access to curricula, trainings, texts and materials -- in all areas including but not limited to, history, literature, family life, sexuality and health education -- that are relevant, comprehensive, age-appropriate, medically-accurate and inclusive of sexual orientation and gender identity/expression. GLSEN calls upon public policy makers to remove any prohibitive laws that forbid or discourage in-school discussions of sexual orientation and gender identity/expression.
If same-sex marriage is a constitutional right, on what legal grounds do schools refuse to alter their policies along the lines GLSEN believes is a "right"? (And see this to grasp what GLSEN has pushed for in the real world, and how far they have gone -- with the collusion of the media and local authorities -- to silence and ruin anyone who opposes them.) I don't see that schools will have any, though please do correct me if I'm wrong. And on what grounds would private or religious schools avoid the GLSEN line? The First Amendment would offer them speech protection, but if their policies discriminate unconstitutionally, the Bob Jones University ruling stands to cost them their tax exempt status.
UPDATE: Because this was a very long post, I've reformatted it to put the rest in extended entry, for easier reading.
As Peter Steinfels wrote in the NYT two years ago, top legal scholars are not sure to what extent the Bob Jones precedent will affect religious institutions in the wake of same-sex marriage's advances in constitutional law. But nobody who understands the philosophical issues at stake here is under any illusion that this is going to be no big deal. From Steinfels column:
Marc D. Stern, whose many years handling religious freedom cases for the American Jewish Congress have made him an expert in the area, can hardly be identified as a conservative agitator. Yet he firmly believes that legal recognition of same-sex marriage will make clashes with religious liberty "inevitable.""No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them," Mr. Stern has written. But for other individuals and institutions opposed on religious grounds to same-sex marriage, its legal acceptance would have "substantial impact."
He has in mind schools, health care centers, social service agencies, summer camps, homeless shelters, nursing homes, orphanages, retreat houses, community centers, athletic programs and private businesses or services that operate by religious standards, like kosher caterers and marriage counselors.
More:
Besides possible, even if remote, risks regarding tax exemption, the scholars' papers noted laws forbidding discrimination in hiring or toleration of a hostile workplace environment. They noted antidiscrimination provisions in many local or state laws licensing commercial enterprises and professional activities, as well as in the ethics codes of professional associations that have a role in accrediting professional schools, licensing professionals or resolving civil suits. And of course they noted the civil rights laws, federal, state and local, barring discrimination in places of public accommodation, housing and education.
Must a Bible college admit a legally married gay couple to married student housing? Must an Orthodox Jewish day school offer health benefits to the spouse of a legally-married gay employee, if it offers them to heterosexual marrieds? As the Becket Fund's Anthony Picarello pointed out in this excellent Heritage Foundation symposium featuring legal scholars on various sides of the same-sex marriage issue, the state of marriage is so pervasive in American law that a finding of the constitutional right to same-sex marriage will dramatically affect religious liberty. Even if courts were to find that a religious institution had the right to maintain a discriminatory policy with regard to homosexuality and gay marriage, they could still suffer substantially from government accomodation. This is what happened to the Boy Scouts of America, who secured (barely) their right to discriminate against gays as a matter of free association, but who have not been able to successfully defend in court the withdrawal of government accomodation -- precisely because the Scouts run afoul of anti-discrimination laws.
Maggie Gallagher, at that Heritage symposium, brought up the case of Catholic Charities of Boston, which got out of the adoption business because it would not obey state anti-discrimination laws regarding adopting out kids to same-sex couples:
As several adoption agencies told the Boston Globe, this is a tragedy for kids. I mean, the most abandoned, abused, most difficult to place kids, these are the kids that went through Catholic Charities and they are going to wait longer or not find homes, in some cases, because there was no willingness on the part of the political and legal elites in Boston to make room for Catholic Charities. It's not whether you can do gay adoptions; there are a lot of adoption agencies that do gay adoptions. It's whether you're good enough to help poor children find homes if you're a traditional Catholic, Protestant, Jew, Muslim, I don't know about Buddhists and Hindus. And the absolute absence, I agree we need to carve out a space. We need to find a better "Live and Let Live" solution, but what's disturbing to me is that right now, in Boston, there is absolutely no sign of any willingness to do this on the part of the people there. Instead, the idea that discrimination is bad and evil and if you do it, we're going to marginalize you and treat you like a racist, is the operative idea unfolding in this scandal, I mean, in this situation.
In New Jersey, the city of Ocean Grove recently yanked a Methodist institution’s real estate tax exemption because it refused to perform civil unions in its outdoor wedding pavilion.In Iowa, the Des Moines Human Rights Commission found the local YMCA in violation of public accommodation laws because it refused to extend “family membership” privileges to a lesbian couple that had entered a civil union in Vermont.
Based on the ruling, the city forced the YMCA to recognize gay and lesbian unions as “families” for membership purposes, or lose $102,000 in government support for the YMCA’s community programs. Equal provision of benefits to all couples was not enough — only the YMCA’s explicit adoption of the state’s new definition of family fulfilled the government’s requirements.
This list barely mentions the avalanche of employment discrimination lawsuits religious institutions will face, if, for example, employees at religious institutions publicly enter same-sex unions in violation of the institution’s teachings and employment policies.
The key thing here is not that state legislatures are granting marriage to same-sex couples. It's that the courts are finding that it's a constitutional right. Sooner or later, I believe, the US Supreme Court, thanks to its reasoning in Casey and Lawrence, will affirm the constitutional right to same-sex marriage when it receives a case. Churches, synagogues, mosques and other religious institutions that live by their religion's traditional teachings on marriage are to be seen by the law as no better than stone-cold racists. And then the lid will come off.
Add to Del.icio.us
Add to Technorati
Add to Digg
Add to Newsvine
Add to Facebook
Add to StumbleUpon
Subscribe
"I have always been consistent that liberals and progressives (Gays and Democrats) are hell-bent to destroy the Church. It is the truth revealed by the facts."
WTF?
I am Buddhist and happy to be...your point to that is? Anyone who has their own beliefs should be burned at the stake..correct? NO church should have that much power.
As late as the 1800's the churches and Pope in Italy (that would be Catholic) had Jews wear patches and condemed them to ghettos without food much of the time...gee what does that sound like? Watch PBS to learn more.
Also...it was once a 'religous belief' that blacks and whites should not marry and have interacial babies....in 50 years or so the Church will be FINE with homosexuality...you'll see...or not, depends on our age! :)
Must a Bible college admit a legally married gay couple to married student housing? Must an Orthodox Jewish day school offer health benefits to the spouse of a legally-married gay employee, if it offers them to heterosexual marrieds?
If they want to keep receiving government subsidies, yes. If they want to practice and preach intolerance and bigotry, on the other hand, they're perfectly allowed to do it on their own dime.
A lot like Lot, considering the true sin of Sodom was inhospitality.
Cleveland, thanx 4 the link on May 27th. I looked at it and it included...
"a. Anal-genital
b. Oral-anal
c. Human Waste
d. Fisting
e. Sadism"
All of which occur in the heterosexual world. Are we to deny equal protections under the law for those hets who indulge in same?
What it ahd to do with "religious liberty" escapes me.
francis beckwith,
"when the state affirms same-sex marriage, it acts willfully against the order and nature of things"
Nonsense. the order and nature of homosexuals is to be attracted to those of the same sex. Shurely you meant it acts willfully against YOU order and the nature of YOUR things.
Erin typed: "Let's face it: there's no earthly reason why we *should* have gay marriage"
Except for that pesky thing called the Cosntitution that 'guarantees' equal treatment before the law, liberty and justice for all, the pursuit of happiness, those sorts of things.
Anglican,
"I was responding to the clear threat of using state coercion and all that implies to force Christian and other peoples compliance with Gay marriage."
That is not happening.
"Attacking peoples religious beliefs is serious stuff,which exactly what the article calls for."
And what of your attacks on my religious beliefs? Christianity does not speak with one voice on this issue.
rr,,
"Try telling the idea that moral opposition to homosexuality and racism are the same to an African-American church."
I wouldn't dream of entering another person's religious space and telling them what to believe. Would that opponents of equality rights for gay citizens would do the same vis a vis my religion. Besides, what makes you think I haven't had this discussion with individual people of colour (many of whom are Christians). My Church is about 27% people of colour, and all of them would disagree with you.
"Gays weren't enslaved or forced because of Jim Crow laws to do things such as drink out of separate water fountains."
Naw, we just have to 'drink' out of separate marital institutions. Oh, and we have experienced job & housing discrimination on a par with that experienced by people of colour.
Also, you falsely believe that I "want polygamy to remain illegal". I have never said that. I personally have no problems with it, but can understand why the State would.
Your 'point' about "private church schools" would have merit if they were "private". As it is, they accept government (i.e. taxpayers', i.e. my) money. Therein lies the difference.
"I don't think you are any less of a person"
Ah, but many, many people here do. (See "marrying a plant/animal/desk.)
"I think homosexual sex is a serious sin"
And I don't. Your point? Or do you not believe in freedom of religion?
"I also think that gay marriage is a theological impossibility"
And you are entitled to believe that. (How many times must I repeat that?) I, otoh, disagree. So why should I be forced to abide by your theological beliefs?
"At the end of the day, you should repent of your sin and turn from it."
Spare me the sermon. I reject your theology, remember?
"But don't forget, you aren't any less of a person."
Tell that to the others.
Post a Comment
By submitting these comments, I agree to the beliefnet.com terms of service, rules of conduct and privacy policy (the "agreements"). I understand and agree that any content I post is licensed to beliefnet.com and may be used by beliefnet.com in accordance with the agreements.