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"Religious conscience" protections in Connecticut:

The Connecticut same-sex marriage bill passed overwhelmingly by the state legislature last night includes several provisions addressing concerns of religious-liberty advocates. Among them are these:

Sec. 501. (NEW) (Effective from passage) Notwithstanding any other provision of law, a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action, or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

Sec. 502. (NEW) (Effective from passage) The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members as provided in section 38a-598 of the general statutes or to determine the scope of beneficiaries in accordance with section 38a-636 of the general statutes, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state.

Sec. 503. (NEW) (Effective from passage) Nothing in this act shall be deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.

(HT: Robin Wilson.)

It looks like the bill will also reaffirm the principle, which has never been contested, that no religious official will be required to officiate at or solemnize a same-sex marriage. And, as in similar laws around the country, it looks like the bill will allow parents to opt out of any marriage instruction for their children in the public schools.

The bill obviously draws on the proposal made by the five academics whose ideas I discussed earlier today. It does omit some of the more problematic aspects of the proposal, such as providing an exemption to "any individual" and its specific reference to the "sincerity" of religious belief.

Lots of practical questions remain about proposals like this, but if enacting a same-sex marriage law comes down to a negotiation over how broadly to draft a religious-liberty exemption then the problem becomes soluble — not much different from any legislative matter. Over the past decade, the political fulcrum has shifted from no recognition (pre-2000) to civil unions (2000-09) to same-sex marriage with protection for religious dissenters (2009- ). That's a healthy shift, and should help address the kinds of concerns that sank gay marriage in California.

gwinje:
I had no idea Americans could progress so fast. I'm a little proud of us. Go Hawkeyes.
4.23.2009 1:12pm
Ex-Fed (mail) (www):
Once again, I don't see why we protect the preferences of people whose consciences are bothered by same-sex marriage, but not people whose consciences are bothered by interracial marriage or remarriage or cross-religion marriage and etc.
4.23.2009 1:42pm
SeaDrive:

or for refusing to treat as valid any marriage



I'm glad to see that this phrase from an earlier thread didn't make it into the bill. That would have been trouble.
4.23.2009 2:01pm
KeithK (mail):
Ex-Fed, same-sex marriage is different in kind than interracial marriage or cross-religion marriage or remarriage for reasons that have been stated numerous times in comment threads on this site and elsewhere.

That said, a religious organization that disagreed with interracial marriage, cross-religious marriage or remarriage shouldn't be forced to perform such ceremonies either or be penalized in any way by the government for such refusal.
4.23.2009 2:07pm
ArthurKirkland:
One way to solve this would be to stop authorizing religious organizations to conduct government action (conducting marriages with have important civil consequenes).

If a couple wanted a marriage recognized by the state, it would obtain a marriage license and have vows administered by a public official. If a couple wanted a marriage to be recognize by a church, it would conduct an additional ceremony in that church.

The government wouldn't interfere with religious beliefs, church doctrine or church operations. The church would be uninvolved in government functions, from issuing drivers' licenses or dog licenses to admninistering wedding vows or deciding who should be married.
4.23.2009 2:47pm
Vader:
o religious organizations can refuse to solemnize a marriage they consider immoral, but cannot refuse to recognize a marriage they consider immoral?

Can religious adoption agencies refuse to assist gay couples?

Can a photographer refuse to photograph a gay marriage on grounds of conscience?

The latter two infringements on freedom of conscience have already occurred, and I see nothing in the conscience provisions here that would protect against them.

Seems like a rather thin diet for the conscientious objectors to gay marriage to me.
4.23.2009 2:48pm
Gilbert (mail):
I think the language proposed by the academics would have been quickly held unconstitutional, but the language quoted here is, I think, unobjectionable.

Nice job to the CT legislature, that could have been bad.
4.23.2009 2:54pm
Matt P (mail):
Frankly, while this bill sounds good, I wonder how it would withstand a challenge. I think Ex-Fed represents many people's views very well. Many on the pro-gay marriage side do see marriage as a basic civil right and given the large numbers of courts around the country that seem to agree with them (i.e. have struck down anti-gay marriage legislation) I can easily see this bill being struck down as well.
4.23.2009 2:54pm
jrose:
... shall not require a fraternal benefit society [...] to provide insurance benefits [...] if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state

Is this a redundant dead letter, at least under federal precedent?

Of course it is trivially true that Free Exercise rights trump the marriage statute (so the clause is redundant). And, under Employment Division, a law requiring insurance benefits that only incidentally impacts religious belief does not violate Free Exercise (so the clause is a dead letter).
4.23.2009 2:57pm
Ex-Fed (mail) (www):
Ex-Fed, same-sex marriage is different in kind than interracial marriage or cross-religion marriage or remarriage for reasons that have been stated numerous times in comment threads on this site and elsewhere.



SSM may or may not be different in kind in a way that justifies the government refusing to recognize it. But once it is legal, I'm not sure what is different about it in a way that justifies carving out exemptions for "conscience" as to SSM but not as to other instances of "conscience."

That said, a religious organization that disagreed with interracial marriage, cross-religious marriage or remarriage shouldn't be forced to perform such ceremonies either or be penalized in any way by the government for such refusal.



I don't think anyone is advocating forcing religious organizations to preform any sort of ceremonies whatsoever, SSM or otherwise. What's at issue is applying anti-discrimination law to the provision of goods and services. Why should the law protect people who don't want to rent the hall to SSM couples, not but protect people who don't want to rent the hall to, for instance, interracial couples? In what way is that principled?
4.23.2009 2:59pm
jrose:
Even assuming Ex-Fed is correct about a marriage right, I don't see how the bill could be struck down.

Any Constitutional mandate on marriage applies only to government actors. It is entirely within a legislature's perogative to determine the extent private actors must comply (assuming the private actors' Constitutional rights aren't impermissibly infringed).
4.23.2009 3:03pm
a non:
This version is infinitely better than the one we debated in the original thread -- it only discusses service related to the solemnization and celebration of marriage.
4.23.2009 3:16pm
AJK:

Why should the law protect people who don't want to rent the hall to SSM couples, not but protect people who don't want to rent the hall to, for instance, interracial couples? In what way is that principled?


Why should the law do either of those things?
4.23.2009 4:23pm
KeithK (mail):

Why should the law protect people who don't want to rent the hall to SSM couples, not but protect people who don't want to rent the hall to, for instance, interracial couples? In what way is that principled?


You are begging the question. If the legislature decides that there is a substantial difference between SSM and interracial marriage then it's not unreasonable to treat them differently under the law.
4.23.2009 4:30pm
DangerMouse:
Seems like a rather thin diet for the conscientious objectors to gay marriage to me.

That's the point. They want to punish people who disagree, but who aren't actually solemnizing a so-called homosexual "marriage."
4.23.2009 4:44pm
trad and anon (mail):
That's the point. They want to punish people who disagree, but who aren't actually solemnizing a so-called homosexual "marriage."


Disagreement remains protected. Disagreement which leads to the performance of certain acts is prohibited. That's how the law works. If a white man thinks he should be allowed to kill black men for looking at a white woman the wrong way, he remains free to say so (as long as he stays away from true threats). If he then kills a black man for looking at a white woman the wrong way, he's guilty of Murder One.
4.23.2009 4:50pm
zuch (mail) (www):
jrose:
Of course it is trivially true that Free Exercise rights trump the marriage statute....
See Employment Division of Oregon v. Smith. "Free exercise" is not some majick talisman that defeats all valid secular legislation.

Cheers,
4.23.2009 5:18pm
Ex-Fed (mail) (www):
You are begging the question. If the legislature decides that there is a substantial difference between SSM and interracial marriage then it's not unreasonable to treat them differently under the law.



Really? What, exactly, makes a religious person's conscience-based belief about gays more worthy of protection than a religious person's conscience-based belief about interracial couples, or inter-faith marriages? For that matter, what makes it more worthy of protection than a libertarian's conscience-based belief that the state should not dictate to whom he should sell services?

And is there any other instance in which the state generally prohibits discrimination, but carves out one type of discrimination based on one subset of religious beliefs and protects it?
4.23.2009 5:34pm
DangerMouse:
Disagreement remains protected.

Oh really? So if it's your religious belief that homosexuality is a sin, and you're fired because your employer learned of that religious belief and doesn't want people working for it that hold such beliefs, do you seriously think that a court is going to rule that you were unfairly terminated in violation of the religious protections of the civil rights acts?

Disagreement is not protected. The entire purpose behind the homosexual rights movement is to normalize their acts and punish people who disagree. It has the effect of criminalizing Christianity.

And excuse me if I don't think that the Black Robed Elite are going to uphold religious freedom in the face of gay rights, which they are substantially more in favor of than religious freedom.
4.23.2009 5:46pm
ArthurKirkland:
I still don't understand why gays do not develop a religion. It would solve many problems, iby evening the playing field.
4.23.2009 6:00pm
Ex-Clerk:
"[The gay rights movement] has the effect of criminalizing Christianity."

I know it's still early in the season, but I nominate this statement for an award in the category of "Best Over-the-Top Hyperbole" of 2009.
4.23.2009 6:08pm
rick.felt:
I still don't understand why gays do not develop a religion. It would solve many problems, iby evening the playing field.

And they'd get to wear those fabulous vestments!
4.23.2009 6:08pm
jrose:
zuch,

I specifically referenced Employment Division in my post.
4.23.2009 6:11pm
Ex-Fed (mail) (www):
Oh really? So if it's your religious belief that homosexuality is a sin, and you're fired because your employer learned of that religious belief and doesn't want people working for it that hold such beliefs, do you seriously think that a court is going to rule that you were unfairly terminated in violation of the religious protections of the civil rights acts?

Disagreement is not protected. The entire purpose behind the homosexual rights movement is to normalize their acts and punish people who disagree. It has the effect of criminalizing Christianity.

And excuse me if I don't think that the Black Robed Elite are going to uphold religious freedom in the face of gay rights, which they are substantially more in favor of than religious freedom.



Assume, for the moment, that I accept your premise. If it is true, then how is the gay issue different than any other issue? In other words, wouldn't the same court let an employer fire me for thinking that gay marriage is not a sin, or for any other belief? If so, why is it suddenly so much more terrible to be eligible for being fired over this one additional subject?

But I don't accept your premise, in point of fact. Judges routinely allow wrongful termination cases to proceed to trial, and juries routinely award damages, when people are fired based on religious beliefs not material to their jobs. Google it. It took me roughly three seconds to find the first one. Hey, and a few seconds later, I found a black-robed tyrant awarding a guy money because AT&T fired him for refusing to sign a diversity policy which, by implying acceptance of homosexuals, violated his religious beliefs. I could Google this all day and find more and more, you know.

Unless, of course, you are suggesting that courts previously protected people from religion-based termination, but the acceptance of gay marriage will now somehow weaken the fabric of the rule of law, as it has weakened the fabric of marriage, and allow employers to fire Christians at will. In which case I must respectfully, if not without rolling my eyes, disagree.
4.23.2009 6:23pm
jrose:
What, exactly, makes a religious person's conscience-based belief about gays more worthy of protection than a religious person's conscience-based belief about interracial couples

The legislature need not provide a reason when it decides which types of private-actor discrimination are prohibited.

That being said, legislatures are carving out this exception because there are enough voters who either believe homosexuality is "what you do" not "who you are", or are tolerant of that belief.
4.23.2009 6:24pm
DangerMouse:
Ex-Fed,

Of course you can find prior instances of court action protecting religious people. You are correct, however, in suggesting that I do not think that judges will do so in the future. I do think judges will permit employers to fire Christians at will, particularly because of their personal bias in favor of gay rights. It will be upheld as promoting public policy, or some other lib excuse.

Remember, Obama wants to appoint judges who sympathize with particular parties before the Court. That's why he voted against Roberts. Obama's not alone in this regards. The entire point behind modern liberalism's approach to judicial philosophy is to put a thumb on the scales of justice: to favor the poor over the rich, racial and sexual minorities over majorities, the "oppressed" over the "powerful", etc.

You're basically saying that you have so much faith in the judicial system, notwithstanding that liberals and basically the entire Democratic party support outcome-based judging, and notwithstanding that in survey after survery judges overwhelmingly favor gay rights over religious freedom, that you think Christians will continue to be protected in America. I don't think that you should roll your eyes at the possibility that such protection might not continue.
4.23.2009 6:37pm
Ex-Fed (mail) (www):
I do think judges will permit employers to fire Christians at will, particularly because of their personal bias in favor of gay rights. It will be upheld as promoting public policy, or some other lib excuse.



I understand the fear, though I do not find it credible. But here's what I find particularly incredible -- what sign is there that the growing acceptance of gay marriage will provoke judicial lawlessness more than general acceptance of gays? In other words, if there is to be a flood of judges defying the law and abandoning their oaths to persecute Christians in favor of gays, why hasn't it happened yet? Where are the cases where judges dismissed complaints on the grounds of "public policy," as you suggest? Where's the evidence?

You're basically saying that you have so much faith in the judicial system, notwithstanding that liberals and basically the entire Democratic party support outcome-based judging, and notwithstanding that in survey after survery judges overwhelmingly favor gay rights over religious freedom, that you think Christians will continue to be protected in America. I don't think that you should roll your eyes at the possibility that such protection might not continue.


My approach is based less on faith than on evidence -- the evidence of how judges have acted to date, and the lack of evidence that they will suddenly stop acting that way. Add to that the lack of logic supporting the proposition that gay marriage will suddenly push them over the edge into lawlessness, where widespread acceptance of gays did not.

Gay marriage is a red herring for generalized hostility to anti-discrimination principles.
4.23.2009 6:51pm
Ex-Fed (mail) (www):
Also, can you please cite a survey where judges overwhelmingly favored "gay rights over religious freedom?" I would be interested to see such a survey, and how it was conducted.
4.23.2009 6:52pm
Yinka Double Dare:
One way to solve this would be to stop authorizing religious organizations to conduct government action (conducting marriages with have important civil consequenes).

If a couple wanted a marriage recognized by the state, it would obtain a marriage license and have vows administered by a public official. If a couple wanted a marriage to be recognize by a church, it would conduct an additional ceremony in that church.


That's what Mexico does actually (my wife and I were married there and the religious ceremony is only symbolic and carries no legal status -- you must have a state official do that), and I think is what Doug Kmiec has advocated as well. I think it's a good solution.

In Mexico, they basically combined the ceremonies for us, having the legal stuff first (which is fairly dry) and then following with the religious ceremony.
4.23.2009 7:00pm
Nathan Wagner:

A potential problem with these provisions is the question of their long-term stability. By passing this language, Connecticut is creating special exceptions to general law. Absent a broad social consensus that sees these exceptions as part of our individual rights structure, I doubt that they are likely to endure. The Civil Rights Act provides a relatively narrow ministerial exception to general anti-discrimination prohibitions. This exception seems to be stable. But it is primarily a common sense provision that prevents the law from being an ass - as it would be if, in the name of ending discrimination on the basis of creed, it compelled Jewish seminaries to accept believing Christians as students and forbade synagogues from denying them installation as rabbis. What Connecticut has done is far broader, and hence likely less stable.

An earlier commenter suggested a fundamental equivalence between the respect the state owes gays (who, by and large, do not chose their orientation) and the respect the state owes those of religious conscience (who, by and large, do not choose their religious upbringing). I doubt such an equivalence would be socially stable, since the issue is so polarized now, and since the country undertook to eradicate just such inherited and traditional preconceptions concerning the equality of blacks. True, this issue is different insofar as it involves far more directly questions of religious doctrine, but if the asserted justification for the conscience exception is the unchosen near-immutability of religious upbringing, emphasis on the immutability rather than on the religion per se, then I don't think the country will buy it.

I'd like to know what Dale Carpenter, the conspirators, and commenters would think of a different proposal.

(1) Guarantee all non-profits broad free association rights - not merely as to membership, but also as to hiring and provision of services. Allow the government to require that these free-association privileges be relinquished if the government funds the non-profit directly, but not as a condition of tax exemptions. This would mean a modest roll-back of current anti-discrimination law, but would have the effect of protecting the overwhelming majority of religious institutions without giving them a special exception that no one else gets.

(2) Broaden free speech guarantees. Clarify that mere belief, and the non-hostile statement of such belief, does not constitute discrimination. Perhaps even create a cause of action in employment law to offset the tendency of companies to terminate unnecessarily as a lawsuit-avoidance strategy. Prohibit gate-keeper institutions such as professional societies, where no crime has been committed, from denying or revoking certification on the basis of tests of mere belief or of "speech extraneous to the positive minimum necessary in professional practice." (We might have to deal specially with classroom contexts in education and therapeutic contexts in the mental health professions.)

(3) Prohibit to states and professional societies the authority to revoke certification or licensure if an individual, not acting as an agent of the state, refers away a job, client, or patient. Do not deny the ability of employers to terminate at-will in such cases.

None of this would protect our wedding photographer, but these proposals would have the effect of protecting most of the places where religious conscience would run afoul of anti-discrimination law and the sensibilities of bureaucratic officialdom - but without giving religious conscience a special (and therefore probably unstable) exemption from general law.
4.23.2009 7:10pm
DangerMouse:
But here's what I find particularly incredible -- what sign is there that the growing acceptance of gay marriage will provoke judicial lawlessness more than general acceptance of gays? In other words, if there is to be a flood of judges defying the law and abandoning their oaths to persecute Christians in favor of gays, why hasn't it happened yet?

It has happened:

-- A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney's costs after she refused to photograph a gay couple's commitment ceremony.

-- A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.

-- Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.

-- A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage....

Last August, the California Supreme Court ruled in favor of Guadalupe Benitez, who is a lesbian, when she sued the North Coast Women's Care Medical Group after doctors said their religious beliefs prevented them from artificially inseminating her....

The court ruled that North Coast Women's Care did not have a free-speech right or a religious exemption from the state antidiscrimination law.

Sometimes, organizations that don't wish to serve gays give in rather than go to court...

Jonathan Turley, a law professor at George Washington University who supports same-sex marriage, said the Bob Jones ruling "puts us on a slippery slope that inevitably takes us to the point where we punish religious groups because of their religious views."
4.23.2009 7:23pm
jrose:
Danger,

Your post is evidence in support of Ex-Fed's claim that "[g]ay marriage is a red herring for generalized hostility to anti-discrimination principles."
4.23.2009 7:27pm
trad and anon (mail):
Oh really? So if it's your religious belief that homosexuality is a sin, and you're fired because your employer learned of that religious belief and doesn't want people working for it that hold such beliefs, do you seriously think that a court is going to rule that you were unfairly terminated in violation of the religious protections of the civil rights acts?


Oh, you mean "punishment" in the form of private discrimination. It should get the same treatment as belief in the racist Christian theology of the South or belief in Mormon theology as it existed on June 5, 1978: it should be treated as absolutely verboten as a matter of social norm. It should be treated the same way under laws prohibiting discrimination on the basis of religion as well.

The entire purpose behind the homosexual rights movement is to normalize their acts and punish people who disagree. It has the effect of criminalizing Christianity.


Normalize gay sex? Sounds good to me. Punish people who disagree (through social sanction and private discrimination)? Sounds good to me as well. Most of us in the gay rights movement would agree with me.

How either of those things amounts to "criminalizing Christianity" is entirely beyond me. Neither of them involves any criminal sanctions, for one thing. There are also plenty of pro-marriage, pro-family Christians, though I suppose you will tell me that True Christians (tm) are anti-marriage and anti-family.

That's what Mexico does actually (my wife and I were married there and the religious ceremony is only symbolic and carries no legal status -- you must have a state official do that), and I think is what Doug Kmiec has advocated as well. I think it's a good solution.


Personally, I would go for the reverse route and allow any adult to solemnize a legal marriage, or get rid of the officiant requirement entirely and allow self-uniting marriages in every state. No need to involve the state in anything more than filing the paperwork.
4.23.2009 7:31pm
DangerMouse:
Ex-Fed,

Chai Feldblum, professor at Georgetown, has been influential in crafting pro-homosexual laws.

This is what she has to say about the conflicts between religious beliefs and homosexual rights:


"When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians." Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don't matter.

"You have to stop, think, and justify the burden each time," says Feldblum. She pauses. "Respect doesn't mean that the religious person should prevail in the right to discriminate--it just means demonstrating a respectful awareness of the religious position."

Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, "I'm having a hard time coming up with any case in which religious liberty should win."
4.23.2009 7:37pm
DangerMouse:
More:


Or consider a recent case at William Paterson University, a state school in New Jersey. A senior faculty member sent out a mass email inviting people to attend movies with a gay theme. A student employee, a 63-year-old Muslim named Jihad Daniel, replied to the professor in a private email asking not to receive messages "about 'Connie and Sally' and 'Adam and Steve.'" He went on, "These are perversions. The absence of God in higher education brings on confusion. That is why in these classes the Creator of the heavens and the earth is never mentioned." The result: Daniel received a letter of reprimand for using the "derogatory and demeaning" word "perversions" in violation of state discrimination and harassment regulations.

Interestingly, Stern points out, a single "derogatory or demeaning" remark not seeking sexual gratification or threatening a person's job security does not constitute harassment under ordinary federal and state sexual harassment law originally intended to protect women in the workplace. Moreover, Stern says, "our entire free speech regime depends on the principle that no adult has a right to expect the law will protect him from being exposed to disagreeable speech."

Except, apparently in New Jersey, where a state attorney general's opinion concluded, "[C]learly speech which violates a nondiscrimination policy is not protected." "This was so 'clear' to the writer," notes Stern, "that she cited not a single case or law review article in support." Ultimately, the school withdrew its reprimand from Daniel's employment file after receiving negative publicity and the threat of a lawsuit from the Foundation for Individual Rights in Education (FIRE).
4.23.2009 7:39pm
Joshua (mail):
gwinje: I had no idea Americans could progress so fast. I'm a little proud of us. Go Hawkeyes.

Don't you mean "Go Huskies"? This is Connecticut we're talking about here, not Iowa.
4.23.2009 7:39pm
DangerMouse:
trad,

Last I checked, religious discrimination was prohibited by law via the Civil Rights Act. If an employer learns of a religious belief of an employee and fires him because of that belief, that is illegal. Do you or do you not support the law permitting people to be fired on the basis of a religious belief that homosexuality is a sin?
4.23.2009 7:42pm
trad and anon (mail):
Last I checked, religious discrimination was prohibited by law via the Civil Rights Act. If an employer learns of a religious belief of an employee and fires him because of that belief, that is illegal. Do you or do you not support the law permitting people to be fired on the basis of a religious belief that homosexuality is a sin?

Do not. The treatment should be the same as the treatment given to believers in the Southern Christian or the pre-6/6/1978 Mormon theology of black inferiority.
4.23.2009 8:16pm
jrose:
trad,

Losing your job isn't "private discrimination" under anti-discriminatory statutes in public accommodations.
4.23.2009 8:24pm
Ex-Fed (mail) (www):
DangerMouse:

In no particular order:

1. The William Patterson University incident does not support the notion that judges will ignore settled law. The case resolved, as your own quote demonstrates, when the university retreated -- probably because FIRE's advocacy convincingly demonstrated that they were in legal jeopardy.

2. I fail to see how the personal opinion of a Georgetown professor regarding how rights should be balanced -- however influential that professor has been in "crafting pro-homosexual laws" -- is evidence that the judiciary will abandon settled legal principles en masse in pursuit of the dreaded Gay Agenda.

3. The now-circulated-everywhere Washington Post article you cite does not support your position either. None of those cases involve a Christian being refused the protection of the law after being fired for expressing a view about gays. The list mostly consists of anti-discrimination laws being applied to people offering goods and services to the public. And as much as I like Jonathan Turley, his conclusion is hysteric. Also, please note that most of those cases involved relating to gays in general, not to gay marriage -- further highlighting, as jrose suggests, that your quarrel is with antidiscrimination principles in general, not with gay marriage in particular.

Also, I'm still very interested in a citation to the studies you referenced showing that judges overwhelmingly favored "gay rights over religious freedom."
4.23.2009 8:26pm
trad and anon (mail):
Losing your job isn't "private discrimination" under anti-discriminatory statutes in public accommodations.

I was responding to the use of the term "punish" to describe what most of us in the pro-gay movement want to do to the homophobic. I was attempting to distinguish government prohibitions from discrimination by private (i.e., non-government) parties. I agree that public accommodations are (and should be) subject to antidiscrimination laws. My position continues to be that the antidiscrimination laws should offer the same degree of protection to believers in anti-gay theology that they offer to believers in racist theology.
4.23.2009 8:37pm
jrose:
trad,

Your original dismissive reply was that the hypothetical was justified "punishment" in the form of private discrimination. But, the hypothetical was about losing your job. And I take it, you don't believe the homophobe or racist should lose his job.
4.23.2009 8:45pm
einhverfr (mail) (www):
Dangermouse:

On your William Patterson University case, doesn't it occur to you that the school backed down when threatened with a lawsuit? That doesn't sound like evidence of judicial lawlessness to me. In fact, it sounds like the exact opposite.

Where do you get the idea that just because the public shuns a position that it censorship will become the result sought by the judiciary?

I can think of a long line of cases, including DeAngelis v. El Paso Mun. Police Officers' Ass'n which lays out specific criteria for harassment claims which are not anywhere near what you seem to think they are. I would think furthermore that a single email in no way would be considered "pervasive" enough to constitute harassment. In reality, there is a requirement that the unwelcome comments be sufficiently pervasive to affect the ability of someone to do his/her job productively. Furthermore, my reading of the cases would be that they would be limited to specific environments, so hiring David Duke as a division manager wouldn't be sufficient for Catholics, Jews, or black folk who report to him to claim harassment despite the fact that the hostility of the KKK to to these groups is well known. In fact, even if Duke were then to advocate genocide at KKK rallies, this would still likely be outside the scope of Title VII.

What makes you think that this is going to change?
4.23.2009 8:47pm
Waldo (mail):
Nathan Wagner:

After a cursory read, your proposal sounds reasonable. I do have a couple of questions on interpretation, however.

For (1), what qualifies as, "funds the non-profit directly?" Does that mean an actual grant to the organization, or does it include assistance for participation in activities supported by government for more general reasons (i.e.- operating homeless shelters, providing adoption services (the Catholic Charities case), etc.)? What about government funding to individuals (i.e.- PELL grants) that attend non-profit institutions?

For (3), if the law should prohibit states and professional associations from revoking licenses, why not just allow individuals to refer away a job, client, or patient, provided that service is generally available. Revocation of a license seems a far less likely danger than legal action by a client. That would cover our wedding photographer, but not corporations, which I don't believe (IANAL) have a right of consciencious objection anyway. Besides, I honestly don't understand why someone would want to contract a service (be it wedding photography or psychological counseling) from someone who doesn't find their lifestyle moral. Ever hear of the concept: if you want it real bad, you'll get it real bad.
4.23.2009 9:24pm
Bob VB (mail):
Do you or do you not support the law permitting people to be fired on the basis of a religious belief that homosexuality is a sin?
The can believe anything they want, the line would be crossed if they called someone else a sinner. They have a right to their religion, they don't have a right to involve others in a public fantasy that other employees or customers or whatever share their religion or its tenets.

But a question:

"…shall not be required to provide… …and such solemnization or celebration is in violation of their religious beliefs and faith."

How does this clause NOT also include remarriage for the divorced, interracial couples, those who think Jews are servants of Satan, etc? Seems pretty broad to me.
4.23.2009 9:29pm
DangerMouse:
What makes you think that this is going to change?

Generally, the modern left is at war with traditional values and specifically at war with organizations that promote them like traditional Christian churches. I think the trend is clearly in favor of persecution of those traditional churches. Religious freedom has been narrowed in many ways via an imperial judiciary or bigoted legislators that are hostage to the latest left-wing trends. For instance, Catholic Charities is deemed not to be a "religious employer" and hence is forced to provide contraception coverage, in violation of its religious beliefs. Catholic adoption services are forced to end adoptions because they could not, as the state license required them to, provide adoptions to homosexuals. Libs are attacking privately-run pharmacists who refuse to distribute birth control, in violation of their religious beliefs. Now religious groups and actors are being forced to cater to gay marriages in various ways.

I find it troubling that one of the most recognized academics who is known for creating homosexual rights laws cannot fathom a single situation where religious freedom should prevail. I find it extremely troubling that the NJ State Attorney General believes that speech that violates nondiscrimination policy isn't protected.

These trends aren't going away and are increasing. As I mentioned, the left is wholly committed towards outcome-based judging and has entire constituencies devoted to it. Left-wing judges have no shame in writing opinions that have nothing to do with the law and everything to do with those outcomes. The left's demand for their outcomes in the face of narrowing religious rights could create serious problems.

For instance, I think it's only a matter of time before Catholic hospitals are forced to provide abortion and contraceptive services, and Catholic doctors forced - at the cost of losing their license - to perform abortions. Additionally, I think that Catholic pharmacists who refuse to provide contraception could face punishment and loss of their licenses as well. That's only the beginning. Civil penalties, jail, etc are all next.

Offering "goods and services to the public" becomes an open-ended tool to destroy religious freedom and force religious people and organizations out of the public sphere. That is the criminalization of Christianity currently being undertaken by the left-wing in America.
4.23.2009 9:45pm
DangerMouse:
Ex-Fed, I meant case after case. As in court cases, not studies. Sorry for the confusion.
4.23.2009 9:48pm
a non:
Bob: Do you really think calling someone a "sinner" should be prohibited? I can understand anti-discrimination laws, but I cannot accept outlawing speech merely because it offends.

Firing a purported "sinner" is discrimination. Thinking and saying they are a sinner without acting on it is not (unless it rises to the level of a "hostile work environment"). If your boss thinks gays are inferior, he's stupid. Even if he says so on rare occasions, he's just being discourteous (but you may want to make sure that these opinions of his are well-known). If he refuses health coverage to same-sex spouses he should be tried in the public court first, and (as long as there are anti-discrimination laws) in the actual Court second.
4.23.2009 10:22pm
Bob VB (mail):
Bob: Do you really think calling someone a "sinner" should be prohibited? I can understand anti-discrimination laws, but I cannot accept outlawing speech merely because it offends. …"hostile work environment"

How is calling a someone else a "sinner" any different that calling them a "whore" or a "moron" or a "fag"?

Yes, if you can proscribe the last 3 you can the first.
4.24.2009 12:00am
einhverfr (mail) (www):
Bob VB and a non:


How is calling a someone else a "sinner" any different that calling them a "whore" or a "moron" or a "fag"?


And given that hostile workplace doesn't even have to be related to behavior directed at the victim....

However, my reading of hostile workplace cases is that it must be quite pervasive. I can't imagine a court entertaining that one person calling another any of those names on a one-off basis during an argument would constitute hostile workplace harassment. However if, for example the individual saw a note on his desk every day saying "fags are sinners" that would almost certainly be pervasive enough. IANAL, though.
4.24.2009 1:08am
Bob VB (mail):
However, my reading of hostile workplace cases is that it must be quite pervasive.

If someone is suing for damages yes. But for them to be fired the bar is much lower, all they have to do is be a disruptive influence at work. Single episode, no - but continued behavior after being told to stop? Of course they can be fired. It might be someone's deeply held belief that people who believe in an afterlife are morons - but they would have no exception of keeping a job if they shared that opinion repeatedly with coworkers or customers.
4.24.2009 1:21am
einhverfr (mail) (www):
DangerMouse:

I find it troubling that one of the most recognized academics who is known for creating homosexual rights laws cannot fathom a single situation where religious freedom should prevail.


First, part of the problem is that pure free exercise is pretty much a dead right as applied to the states. To the extent that it is protected, it is usually tied into some other right (see Smith v. Employment Division). Basically, religious free exercise protections are so weak that they are effectively subsumed in substantive due process protections.

So on a pure level, I can't think of any case on the state level where the current understanding of free exercise would trump just about anything else because ANY rational basis currently trumps it provided that the law is generally applicable.

However, that sort of analysis is quite misleading. There are a great many composite rights where free exercise comes into play along with some other right. In these cases, the protection is quite a bit stronger. So for example, administering communion would affect freedoms of speech, free exercise of religion, and association. The same would be said about religious folk solemnizing weddings.

While I can't see any reason why the state under current undertandings couldn't, say, criminalize giving children alcoholic substances as part of communion, this would run into fewer problems than saying "the church may not refuse to give communion to persons who are divorced and remarried."

Similarly, in cases where one worries about discrimination on the basis of religious belief and practice, there are many rights which are so much stronger as to effectively subsume religious freedom. Freedom of speech and association are good examples.
4.24.2009 1:23am
Nathan Wagner:
Waldo:

Thanks for the reply. For (1) the government would be able to require broader association on the part of a non-profit in cases of direct funding for any purpose (your example of providing homeless shelters would be a possibility). But it would have to be actual funding, not tax exemptions, and not any other public benefits like licensure (the Catholic Charities case), recognition of accreditation, or use of public spaces, etc. I would, however, add the caveat that "disparate demands shall not be made on differently-associating non-profits funded to provide substantially similar services."

Individuals are not non-profits, so they don't come directly within my #1. I think your concern (with Pell grants) is more about schools. Currently the government regards educational grants as given to individuals, not to the schools they attend. I would not change this. So, under my proposal, Pell grants would not give the government cause to impose restrictions on non-profit schools, although funding for research would.

Schools are a difficult case because many are at least partially reliant on public funds they receive indirectly through the students that enroll, and only a constitutional amendment could really guarantee restrictively-associating schools continued access to this student aid. But if gay rights becomes a less rancorous issue because gays gain fuller social and legal equality, there is unlikely to be a legislative push to do this - both sides can live and let live. I think the greatest danger to schools concerning student aid is not legislative but bureaucratic. Accrediting boards could become more ideological; the Department of Education could encourage or go along with such a move, making restrictively-associating schools de facto ineligible. By forbidding the government from denying non-profits any public benefit on the basis of its associative choices (other than direct funding) we shut down the bureaucrats and leave it to the legislators.

Your re-casting of my (3) as an individual right to "refer away a job, client, or patient, provided that the service is generally available" works conceptually, but I need help seeing how it could work legally. After all, photographers incorporate to limit their liability, so would the incorporated photographic business have the right?

I agree that a restriction on government licensing agencies is meaningless if the act of referring away is itself subject to legal sanction. My concentration on licensing bureaucrats and professional societies stems from my perception that they are more likely than legislatures to come to believe it their moral duty to cleanse a profession of discriminators. The risk with legislatures is often ham-handedness - they are frequently open to reasonable compromise so long as they actually realize that they're treading on someone's feet. Not so with bureaucrats.

I should note that professional societies and other gatekeeping organizations are usually non-profits, and so also could avail themselves of my suggested protections under (1). The gist of my (2) and (3) as concerns such organizations would have to be to bar the state from denying benefits by exclusive delegation to organizations pursuing tests otherwise prescribed to the state. I am quite certain that, faced with the prospect of the state recognizing or creating another rival gatekeeper, the gatekeepers would back off such tests.

Finally, the biggest objection I expect to my proposal item (1) would be that racists could exploit it. I have some ways to deal with that, but this comment is already too long and I'll save them for later.
4.24.2009 1:44am
SeaDrive:
The Connecticut bill is signed, sealed, and delivered, with remarkably little fuss.
4.24.2009 8:56am
Sk (mail):
"Over the past decade, the political fulcrum has shifted from no recognition (pre-2000) to civil unions (2000-09) to same-sex marriage with protection for religious dissenters (2009- ). That's a healthy shift, and should help address the kinds of concerns that sank gay marriage in California."

The Connecticut legislature is passing a SSM law because the Connecticut supreme court forced it to. This is not a "shift of the political fulcrum." It is, however, doubleplus ungood. 2 + 2 = 5.


Sk
4.24.2009 9:59am
einhverfr (mail) (www):
BobVB:

I live in an at-will state. You can be fired for no reason whatsoever. So I don't see a problem.
4.24.2009 10:17am
Gilbert (mail):


"[The gay rights movement] has the effect of criminalizing Christianity."



I know it's still early in the season, but I nominate this statement for an award in the category of "Best Over-the-Top Hyperbole" of 2009.


Second
4.24.2009 10:42am
SeaDrive:

The Connecticut legislature is passing a SSM law because the Connecticut Supreme Court forced it to.


Forced?
4.24.2009 11:01am
Richard Aubrey (mail):
Gilbert.
I suppose you're right. See some cases in Canada, however.
I know there's a border there and all, but a number of speech-control types think Canada's the model.
4.24.2009 11:12am
Sk (mail):

"The Connecticut legislature is passing a SSM law because the Connecticut Supreme Court forced it to.



Forced?"

Below is a quote from one of Dale's earlier posts, linked to in the original post.

"Likewise, the Connecticut legislature is considering a bill to bring the state's marriage statute in line with the state supreme court's decision last year in Kerrigan v. Comm'r of Pub. Health, which mandated that the state allow same-sex couples to marry."

"forced," I suppose, doesn't mean the same as 'mandated?'
(black is white, up is down, work is freedom).

Sk
4.24.2009 12:29pm
einhverfr (mail) (www):
SK:

Are you saying there were no other choices available to the Connecticut legislature? Like, say, get rid of state recognition of marriages altogether?
4.24.2009 12:35pm
trad and anon (mail):
Are you saying there were no other choices available to the Connecticut legislature? Like, say, get rid of state recognition of marriages altogether?

Can they even do that, given that marriage is a fundamental right under the federal constitution? Turner and Zablocki can be distinguished, but the issue is far from open and shut.
4.24.2009 12:49pm
Sk (mail):
"Are you saying there were no other choices available to the Connecticut legislature?"

No, I'm not saying it. I'm saying Dale said it.

I'll repeat the relevant sentence from my post (three times) in the hopes that you will read it this time.


"..the state supreme court's decision last year in Kerrigan v. Comm'r of Pub. Health, which mandated that the state allow same-sex couples to marry"

"...the state supreme court's decision ...which mandated that the state allow same-sex couples to marry"

"...the state supreme court...mandated that the state allow same-sex couples to marry..."

Still confused?

Sk
4.24.2009 1:48pm
SeaDrive:
It seems to me the legislature had a choice.


ARTICLE TWELFTH.*

OF AMENDMENTS TO THE CONSTITUTION.

Amendments to this constitution may be proposed by any member of the senate or house of representatives. An amendment so proposed, approved upon roll call by a yea vote of at least a majority, but by less than three-fourths, of the total membership of each house, shall be published with the laws which may have been passed at the same session and be continued to the regular session of the general assembly elected at the general election to be held on the Tuesday after the first Monday of November in the next even-numbered year. An amendment so proposed, approved upon roll call by a yea vote of at least three-fourths of the total membership of each house, or any amendment which, having been continued from the previous general assembly, is again approved upon roll call by a yea vote of at least a majority of the total membership of each house, shall, by the secretary of the state, be transmitted to the town clerk in each town in the state, whose duty it shall be to present the same to the electors thereof for their consideration at the general election to be held on the Tuesday after the first Monday of November in the next even-numbered year. If it shall appear, in a manner to be provided by law, that a majority of the electors present and voting on such amendment at such election shall have approved such amendment, the same shall be valid, to all intents and purposes, as a part of this constitution. Electors voting by absentee ballot under the provisions of the statutes shall be considered to be present and voting.

4.24.2009 2:55pm
SeaDrive:
SK, the legal point is that the CT SG mandated SSM, which could, and has, gone forward without any enabling legislation. The SG did not, and can not, force the hand of the legislative branch.

On a political level, the point is that the State Reps and Senators took the pulse of their constituencies and came to the group decision of "yea, we're cool with that" and passed the bill. And Jodi Relle, bless her little pea-picking heart, said, "yeah, I'm cool with it too" and signed it. So it's a fact that the Legislature and Governor freely signed on to SSM when they could have been tied up in Constitutional Amendments, and/or crafting some other sort of anti-SSM legislation that would have thrown it back in the courts.

In our three-branch system of government, leadership can come from different places. The fact that it was the SG that took the first step in the case in no way diminishes the fact that all three branches of government had their say, and said the same thing.
4.24.2009 3:09pm

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