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Religious liberty and SSM, continued:

This post continues a discussion I have been having with five law professors (Tom Berg, Carl Esbeck, Rick Garnett, Doug Laycock, and Robin Wilson) who have proposed that state legislation authorizing same-sex marriage should include a special, broad exemption for religious objectors. The proposal, my questions about it, and the professors' responses can all be found at one link here. I'll assume interested readers (all six of us!) are familiar with the draft proposal and with the exchange so far.

The six of us appear to agree that, as Robin Wilson put it in her measured op-ed in the LA Times on Sunday, "It's possible to legalize gay marriage without infringing on religious liberty." That separates us from the National Organization for Marriage and some others who warn of irreconcilable and intolerable conflicts between gay marriage and religious liberty. (I should add that I don't know whether Berg, Esbeck, Garnett, and Wilson themselves oppose state recognition of gay marriage on other grounds. Laycock supports it.)

We do have some differences on the scope of the conflict and thus on the breadth of any needed accommodation. The bottom line is, I think there are genuine and substantial concerns about the reach of some state antidiscrimination laws. But I think the distinctive contribution of SSM to these conflicts has been small, is likely to remain small, and thus that the case for special religious exemptions in SSM bills is not very strong. While the substantive legal case is unproven, the political case is stronger. In that sense, I welcome this new focus in the SSM debate and I am grateful for the practical work being done by scholars like Berg et al. to alleviate the concerns of traditionalists while making space for the full protection of gay families.

I. SSM and religious liberty: the experience so far

Like much of the rest of the debate over the effects of gay marriage, the question whether SSM threatens religious liberty -- either by itself or in combination with various state antidiscrimination laws -- is no longer a wholly theoretical one. We have now had full gay marriage in Massachusetts for five years. We have had gay marriage or the legal equivalent of it in Vermont since 2000, in California since 2005, in Connecticut since 2005, in New Jersey since 2006, in New Hampshire since early 2008, and in Oregon since early 2008. (Other states have formally recognized same-sex relationships, while granting a much more limited set of rights: Washington (2007), Maine (2004), Hawaii (1997), Maryland (2008), and D.C. (1992).) I leave out Iowa (2009) and Colorado (2009), where recognition is still fresh.

Just counting the pre-2009 SSM and civil-union states, covering about one-fifth of the U.S. population, that's a combined 27 years' worth of experience fully recognizing gay relationships. Each of those seven states also has broad laws forbidding discrimination on the basis of sexual orientation in areas like employment, education, housing, public accommodations, and so forth. Each of those states also prohibits discrimination on the basis of "marital status" in housing and/or employment.

In these seven states, tens of thousands of gay couples have been married, civilly unionized, or domestically partnered over the past decade. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxes, chosen professional photographers, hired clergy and non-clergy alike to officiate, gotten licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, claimed health benefits for their spouses, sought employment to support their families, trudged through relationship counseling, and done every other ridiculously expensive and anxiety-laden thing married people do.

The opportunity has certainly been there for massive legal conflict. Yet the legal conflicts between gay couples and religious objectors -- all under pre-existing anti-discrimination laws -- have been very few. I can find no reported decisions, for example, where a small landlord refused to rent to an unmarried gay couple, much less a married one.

And the number of these conflicts in which the state's formal legal recognition of the gay couple determined the outcome is . . . zero. The number of cases in which the existence of a gay marriage or civil union defeated an otherwise meritorious religious-freedom claim is . . . zero. The number of cases in which the absence of a gay marriage (or civil union) relieved the religious objector of a non-discrimination obligation is . . . zero.

cmr:
Like I said in one of the other blog posts, DC, I don't expect any legislature or court to uphold religious exemptions who would whole cloth come up with the right to SSM. I understand there is more to the issue than politics, but I don't think politicians (especially liberal Democrat politicians) have anything to gain by siding with religious groups in any sort of socio-political or legal battle with the gay community.
5.6.2009 4:39pm
levisbaby:
No different than including a special, broad exemption for Klan members in civil rights legislation for African Americans.

Hateful bigotry is hateful bigotry, even if it is done in the name of Jeebus.
5.6.2009 4:51pm
FWB (mail):
SSM is NOT about marriage which is a religious institution not a civil one. SSM is about greed. SSM is about laws that cause inequalities. Repeal the laws giving "married" couples the breaks and special privileges and immunities. Make the law such that ANYONE may choose ANY OTHER person as their "partner", no paperwork necessary.

As always, governmental regulation is the CAUSE of the problem.
5.6.2009 4:53pm
Down from the Ivory Tower:
Now Maine! We will not be stopped. I hope you're watching, Justice Kennard.
5.6.2009 4:54pm
Jon Roland (mail) (www):
The obvious and best solution is for government to drop the use of the word "marriage" and recognize "domestic partnerships" among any number of any kind of people, who, if they want to call it "marriage" and other people call it "marriage", that is their business. What gets enforced in law is the domestic partnership contract, which can have default terms established by statute for various combinations, such as opposite-sex, same-sex, with or without children, grandparents, co-resident friends, or whatever.
5.6.2009 4:55pm
cmr:

Hateful bigotry is hateful bigotry, even if it is done in the name of Jeebus.


Yeah, even if it's done in the name of the LGBT community, too.

The obvious and best solution is for government to drop the use of the word "marriage" and recognize "domestic partnerships" among any number of any kind of people, who, if they want to call it "marriage" and other people call it "marriage", that is their business. What gets enforced in law is the domestic partnership contract, which can have default terms established by statute for various combinations, such as opposite-sex, same-sex, with or without children, grandparents, co-resident friends, or whatever.


To some, that would be giving them what they want: to destroy marriage and divorce the terms husband and wife away from mother and father.
5.6.2009 4:58pm
Danny (mail):
What is so nuts about this whole debate is that is all hypothetical. In a wildly diverse country of 300m people we can't find clear cases of religious people being discriminated against by gays. Where is this famous sweet Christian lady who is suffering because she had to sell all her cookies at the church bake sale to a bunch of atheist f*gs? Come up with real-life legal cases and we'll see if we need to increase religious protection.

I want an SSM for myself and my boyfriend for concrete, practical legal reasons. I can explain exactly why having an SSM or its equivalent will make my daily life better. It's super-clear. Where are the real living anti-SSM people in the places where there is SSM who have lost religious freedom to do or say something because of SSM?
5.6.2009 5:00pm
levisbaby:

To some, that would be giving them what they want: to destroy marriage and divorce the terms husband and wife away from mother and father.

You forgot stealing your precious bodily fluids, there Mr. Foil Hat.
5.6.2009 5:18pm
IB Bill (mail) (www):
My experience in the episcopal church is that these "conscience" exceptions get excised in about a generation.

I don't know if today's religious objections clause are analogous to TEC's experience. But my expectation is, that is SSM is ruled or decided through culture change as a civil rights issue, then ultimately, there will have to be a cost to religious believers or anyone else who doesn't accept the new status quo. We don't permit, as far as I know, churches to discriminate against others in housing and employment, do we? (If we do, my argument blows up).

Similarly, how can society tolerate Catholics and evangelical Christians, since those of us who accept the Church's teachings on homosexuality whenever they're actually applied, such as not marrying same-sex couples in our churches?

If on the other hand, SSM isn't a civil rights issue, but merely a decision to change the civil definition of marriage to give some civic space to homosexuals so they can enjoy the legal rights of marriage, then we can carve out exceptions left and right for churches.

I'm not sure of my facts here. I believe Catholic Churches can fire teachers who are divorced or pregnant out of wedlock, so perhaps SSM would fit under those exceptions.
5.6.2009 5:23pm
CJColucci:
"It's possible to legalize gay marriage without infringing on religious liberty."

It's not only possible; it's easy. Crafting same-sex marriage laws that actually do infringe on religious liberty would be hard. Passing such laws would be even harder.
5.6.2009 5:25pm
Brian Hanifan (mail):
Danny this link is for you.
5.6.2009 5:27pm
Danny (mail):
@ Brian Hanifan

This seems to be an issue about anti-discrimination laws in good and services. It's an issue of whether or not it is legal to discriminate against gay individuals or couples (legally recognized or not, with SSM or not) in services open to the public. Those people wanted to have their cake an eat it too. They wanted the tax exemptions and funding of having a service open to everyone, but then they wanted to behave like a private service that chooses its clientele. How can you have it both ways? How is this affected by SSM? How is this any different from a service provider excluding, say, Muslims?

There are countries that have SSM but that do not forbid discrimination is the providing of services, and vice versa. So they are separate issues.
5.6.2009 5:41pm
Joseph Slater (mail):
We don't permit, as far as I know, churches to discriminate against others in housing and employment, do we? (If we do, my argument blows up).

In the employment law realm, current law does indeed allow churches and pervasively religious institutions to discriminate in hiring in ways that would otherwise be illegal. Title VII has specific exceptions allowing that.
5.6.2009 5:41pm
BABH:
IB Bill:
Catholic churches are not required to perform marriages for non-Catholic straight couples. If same-sex couples are by definition non-kosher in a Catholic sense, then naturally no Catholic church will be required to perform same-sex marriages.

There are of course many churches of other denominations that do solemnize same-sex marriages. Is their religious liberty being trampled by those States (and the Feds) that don't recognize the validity of those unions?
5.6.2009 5:42pm
Oren:

To some, that would be giving them what they want: to destroy marriage

It baffles me that you could attribute that as a positive motive for people that want to increase the availability of marriage. Maybe SSM will cheapen marriage but surely that can't be the goal.


... non-kosher in a Catholic sense ...

This is an unfortunate phrase.
5.6.2009 5:46pm
Joseph Slater (mail):

... non-kosher in a Catholic sense ...


This is an unfortunate phrase.


LOL.
5.6.2009 5:49pm
BABH:

... non-kosher in a Catholic sense ...

This is an unfortunate phrase.

The appropriate term didn't leap to mind. I think this has a ring to it.
5.6.2009 5:52pm
John Moore (www):

Hateful bigotry is hateful bigotry, even if it is done in the name of Jeebus.


Speaking of which?
5.6.2009 5:54pm
Sarcastro (www):
Wow, I just found out Jeebus is bigoted hate speech! I always suspected Homer Simpson was anti-Christian, and now I know!
5.6.2009 5:58pm
IB Bill (mail) (www):
Joseph Slater and BABH: Right. Catholics aren't forced to marry non-Catholics. Actually, now that I think about it, a priest can decline to marry anyone on various canon law grounds ... Tks.
5.6.2009 6:00pm
DangerMouse:
It baffles me that you could attribute that as a positive motive for people that want to increase the availability of marriage. Maybe SSM will cheapen marriage but surely that can't be the goal.

Oren, your statement is circular: you can't increase the "availability" of something if by doing so you change its very nature. It's like diluting wine with so much water that it no longer has the same flavor. Something 1 part wine and 1,000 parts water is no longer wine. Yeah, it's "available" to more people, but it's fundamentally changed.

Anyway, whether the goal is to cheapen marriage, that will be its effect. In any event, that's not what's under consideration here. The point is that religious liberty should be protected. According to the op-ed:

clerks in the local registrar's office, photographers, owners of reception halls, florists -- might not have the legal right to refuse to provide services for same-sex weddings, even if doing so would violate deeply held beliefs. Religious organizations could be affected too. For example, a Catholic university that offers married-student housing might have to rent to married same-sex couples or risk violating state law. ...

What they should not do is what New Hampshire's Senate did last week: pay lip-service to religious freedom while enacting meaningless protections. New Hampshire's bill provides that "members of the clergy ... shall not be obligated ... to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion." But this is a hollow guarantee: The 1st Amendment already provides such protection.


I agree with the op-ed that "Wedding advisors, photographers, bakers, caterers and other service providers who prefer to step aside from same-sex ceremonies for religious reasons also need explicit protection."

I'd also add that other organizations that engage in services related to a religious purpose, such as adoption, charity work, etc., be given explicit protections.
5.6.2009 6:02pm
Joseph Slater (mail):
Oren, your statement is circular: you can't increase the "availability" of something if by doing so you change its very nature. It's like diluting wine with so much water that it no longer has the same flavor.

Wow, I didn't know marriage worked like that: my marriage will be more flavorful and possibly have more alcohol content if fewer people can get married. I hereby call for bans on anyone in the following groups getting married, just so my marriage can be better: the left-handed, Buddhists, people who voted for Fred Thompson in any primary, and people whose posting handle includes the word "mouse."
5.6.2009 6:07pm
Cityduck (mail):
What I find ironic about this whole debate is that Jesus himself recognized that there is a difference between the enforceable civil contract governments call "marriage" and the sacrament he recognized as "marriage." Jesus didn't recognize state sanctioned marriages (or divorces) for his religious purpuses. That some followers don't understand this distinction, and make absurd claims as a result, is a sadder statement on their understanding of their religion than anything else.
5.6.2009 6:08pm
Yankev (mail):

What is so nuts about this whole debate is that is all hypothetical. In a wildly diverse country of 300m people we can't find clear cases of religious people being discriminated against by gays.
Unless you count, among other things, the wedding photographer in NM who was fined for not wanting to be part of a same sex commitment ceremony.

Where is this famous sweet Christian lady who is suffering because she had to sell all her cookies at the church bake sale to a bunch of atheist f*gs?
Nice straw man, there. I like the use of "f*gs" to remind us that any opposition to SSM or for that matter same sex sex is simply based on hate. And the suggestion that we are talking about merely selling goods in a quick, impersonal transaction rather than participating for several hours in someone else's ceremony. Anyone who has ever worked with a wedding photographer, a wedding planner, caterer, etc. knows that they don't simply take your cash, hand you a cookie and move on to the next customer. They are in attendance before, during and sometiems after the event, and are involved intimately in the planning and execution of the ceremony, sometimes for hours, and sometimes for weeks or months.

Real life legal case? Apart from the photographer, consider this hypothetical (granted, not yet a real life case). Say I own a kosher catering business. David and Steve come in and say if I don't cater their wedding, I will be sued. Rabbi X heads the non-profit Orthodox religious organization that certifies my business and food as kosher. Rabbi X warns me that such an event is incompatible with the Jewish religion, and that he will not furnish supervision for the event. He reminds me that without a supervisor there, I cannot prepare and serve kosher food for the event, thereby making it impossible for me to cater it whether I want to or not. He also reminds me that if I cater it without supervision, he will terminate my kosher certification as his contract allows. Loss of certification means I am out of the kosher catering business. Have you got an answer for me?

By the way, I represent a certification agency on a pro bono basis. If you tell me this hypothetical cannot occur (as JohnD did on another thread), I will tell you that you are very much mistaken.
5.6.2009 6:10pm
Joseph Slater (mail):
Real life legal case? Apart from the photographer, consider this hypothetical (granted, not yet a real life case).

So in other words, you know of only one case.
5.6.2009 6:11pm
PC:
Something 1 part wine and 1,000 parts water is no longer wine.

Jesus can take care of that ;)
5.6.2009 6:12pm
sock:
The good thing about this issue is that it recognizes that there is more than one side to the SSM coin.

The bad thing is, I can't figure out why all of this has to be a religious exemption...these actions should be legal or not legal, not dependent on being religious, or even necessarily attributed to religion.
5.6.2009 6:12pm
Sarcastro (www):

I own a kosher catering business

Private? I think Chief Justice William Rehnquist might have considered the issue.

So did Souter.
5.6.2009 6:15pm
DangerMouse:
Wow, I didn't know marriage worked like that: my marriage will be more flavorful and possibly have more alcohol content if fewer people can get married.

My point is that increasing the availability of something can by definition change its nature. You could "increase the availability" of marriage by allowing parents and children to marry, so that the children can receive certain legal rights and tax advantages, but that would destroy the institution of marriage.
5.6.2009 6:28pm
Joseph Slater (mail):
I understood your point, but it was general to the point of meaninglessness.

I'm a married heterosexual. I know some married gay folks. The fact that they (and other gays) can marry does not affect my marriage in any way that I can perceive or in any way that any anti-SSM advocate has ever been able to explain plausibly.
5.6.2009 6:30pm
John D (mail):
Yankev,

And so I bring into this thread the same question:

If serving non-Orthodox Jews is so against kosher certification, then how do glatt kosher delis get away without checking people's status at the door? I've eaten at glatt kosher delis, yet I have never worn a tallit katan.

For that matter, in the recent controversy over the Rubashkin kosher meat company, it was made clear that Rubashkin was hiring illegal immigrants from Mexico to prepare their kosher meat. Are you suggesting that a significant proportion of illegal immigrants from Mexico are, in fact, Orthodox Jews?

Under the laws of kashrut, gentiles can prepare food.

Rubashkin didn't lose their kosher certification because their food was being prepared by non-Jews (because, face it, it was being prepared by Catholics). How then would someone lose their certification because their food was being provided to non-Jews?
5.6.2009 6:35pm
Danny (mail):
@ Yankev
First of all I'm sorry of I implied that all opposition or questioning SSM is motivated by hate, that is obviously not true. Although in the life of gay people, discrimination usually comes from secular hateful people rather than principled religious people.

Obviously the gay couple should have no right to threaten or impose their service on the kosher catering company. It would outrageous to put them in the position where they would be forced to choose between their certification and following an anti-discrimination law. Maybe the wedding photographers and the caterers are required, at that point, to be participants in the wedding, rather than impartial providers of a public service. It's qualitatively different from a hotel clerk not renting rooms to gay people for example.
I would argue for robust religious exemptions for religious-certified service providers, especially for "invasive" services that imply some degree of participation. I don't think it would place a huge burden on us gays either as I think that most gays are discriminated against by non-religious people.
5.6.2009 6:36pm
gwinje:
Joseph Slater,

You didn't notice when your wife turned into a man?
5.6.2009 6:37pm
Cityduck (mail):

that would destroy the institution of marriage


You are speaking gibberish. I realize that it is easy to parrot others, but think about what you say.

Marriage is a civil contract resulting in a legal status or a religious sacrament (take your pick).

And the only thing that can "destroy" it is termination of the contract/legal status through divorce or the voiding of the sacrament ab initio through annulment (take your pick).

If your real concern is maintaining the desirability of marriage againt the trend of couples just deciding to live together without bothering to formalize their relationship (or worse single unwed parents), I would think that you would see the gay community's desire to formalize their relationships through civil recognition of marriage in a positive light.
5.6.2009 6:44pm
Borealis (mail):
Some old words of wisdom for lawyers is: If you don't understand the other party's point of view, then you don't understand your case.

This applies in spades to the SSM/Prop 8 debate. Both sides have strongly held (and rational and moral) views. If you don't understand what is moral and rationale about the other side's views, then you don't understand the issue.
5.6.2009 6:46pm
Tatil:
If religious objection exemptions let landlords refuse to rent apartments to gays or companies from offering services for gay marriages, I can see the religious right organizing boycotts of companies that offer these services. In most markets, there are more religious people than gays, so this may lead many companies to abandon the gay market.
5.6.2009 6:47pm
Just Dropping By (mail):
I leave out Iowa (2009) and Colorado (2009), where recognition is still fresh.

Colorado?!? I'm not aware of same sex marriage or civil unions having been recognized in Colorado in 2009. The only thing I can find on Google News is that a bill was passed last week to allow health insurance benefits for same sex partners of state workers.
5.6.2009 6:48pm
John D (mail):
Danny,

I want to jump into Yankev's whole hypothetical thing.

A public event hall is just that: public. Like a restaurant, they can't really refuse to rent it out to people who can pay.

They can insist on using their own food and employees. They can probably refuse to allow religious ceremonies there (although then they'd have to do so in a non-discriminatory fashion; you can't say yes to one religious group and no to others).

Here's my hypothetical:

Josh and David are a couple about to marry. They're both Reform. Josh's great-aunt Rose isn't Reform, she's Conservative. As such, she will only come to the ceremony if the food is kosher.

I would maintain that the kosher event hall has no grounds on which they can refuse service to the wedding of Josh and David. The caterer is not, despite Yankev's claims, actually taking part in the marriage. (A week before, Arnie and Sarah got married there. Sarah is a modest woman and the thought of the caterer taking part in her marriage would have made her blush.)

Yankev's problem is that he persists on seeing a kosher event hall as more like a synagogue, when it is more like a restaurant.
5.6.2009 6:50pm
James Gibson (mail):

Crafting same-sex marriage laws that actually do infringe on religious liberty would be hard. Passing such laws would be even harder.

The problem is there is a reverse method that is very easy. You simply have a State like Vermont that passes a same sex marriage law with protections in it for religions, and then have the Gays get their lawyers and have the State court rule the protections as unconstitutional. The protections get voided and you have the situation that you say is impossible.
5.6.2009 6:59pm
Joseph Slater (mail):
You didn't notice when your wife turned into a man?

That would explain how pissed off she gets when the Red Wings lose. . . .
5.6.2009 7:00pm
U.Va. Grad:
You didn't notice when your wife turned into a man?

That would explain how pissed off she gets when the Red Wings lose. . . .


I figured that an unfortunate proximity to Detroit would do that. ;)

Or...maybe it's even more nefarious! An unfortunate proximity to Detroit causes gay marriage to turn women into men!.
5.6.2009 7:06pm
Danny (mail):
Why is this all new with gay people? In such a big country of conflicting religions who hate each other, there must be a body of established case law suggesting what the cut-off point currently is wrt services religious-affiliated groups have to offer to the public and not. How would the law currently treat Patsy's Pentacostal Pictures if it were invited to photograph a wedding from some other religion the owners hated?

Again a fascinating question, utterly divorced (no pun intended) from civil marriage laws.
5.6.2009 7:09pm
Owen Hutchins (mail):

Oren, your statement is circular: you can't increase the "availability" of something if by doing so you change its very nature. It's like diluting wine with so much water that it no longer has the same flavor. Something 1 part wine and 1,000 parts water is no longer wine. Yeah, it's "available" to more people, but it's fundamentally changed.


Amazing, I was totally unaware that there is a finite amount of marriage available, and spreading to thin dilutes it.


Anyway, whether the goal is to cheapen marriage, that will be its effect. In any event, that's not what's under consideration here. The point is that religious liberty should be protected. According to the op-ed:

clerks in the local registrar's office, photographers, owners of reception halls, florists -- might not have the legal right to refuse to provide services for same-sex weddings, even if doing so would violate deeply held beliefs. Religious organizations could be affected too. For example, a Catholic university that offers married-student housing might have to rent to married same-sex couples or risk violating state law. ...

What they should not do is what New Hampshire's Senate did last week: pay lip-service to religious freedom while enacting meaningless protections. New Hampshire's bill provides that "members of the clergy ... shall not be obligated ... to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion." But this is a hollow guarantee: The 1st Amendment already provides such protection.


Does that same clerk/etc. have the right to refuse to serve others for religious reasons? I'm pagan, can they refuse to give me a marriage license, or serve me in a store?
Because I have to be honest, I can't think of many times I've seen it claimed that religious freedom means an individual gets to violate anti-discrimination laws.
5.6.2009 7:10pm
Joseph Slater (mail):
An unfortunate proximity to Detroit causes gay marriage to turn women into men!.

That is at least as plausible a theory as some that one encounters in these SSM threads. But my wife was born in Detroit, and if she heard your "unfortunate proximity" reference, why, she would . . . well, what she would do might lend credence to your theory.
5.6.2009 7:16pm
Kimball (mail):
I've thought very hard and long about the legal and religious aspects of gay causes, because my brother is gay. We've discussed the matter in great detail and on numerous occasions. After much consideration I have concluded the following: 1) being gay is NOT a choice 2) being gay is not normal, e.g. natural. 3) if being gay is not a choice and not normal then it must be genetic or medical. Therefore, as a legal matter, if being gay is a genetic variant or a medical disorder, to discriminate against gays should be illegal. As a religious matter, if being gay is a genetic variant or a medical disorder God would not punish someone for being gay, and, it cannot be a sin. My conclusion, gays should be able to marry and do so without being discriminated against. However,I also believe that religious organizations should be free to discriminate, along with private people, non-public organizations and venues.
5.6.2009 7:19pm
js (mail):
First thing: discrimination law. you can discriminate against someone for any reason but an illegal reason. (in the apartment business, very aware of this)

so i'll throw out a hypothetical for you, compared to the NM case. Discrimination on basis of religion is illegal in a state. The wedding photographer refuses to photograph a Mormon wedding, on the basis that she is an evangelical Christian and Mormonism is a false religion. That's illegal...and the cost of doing business in a place that bans discrimination on the basis of religion. I would say operating a private business in a state that bans discrimination on the basis of sexual orientation is the same thing. There should be exceptions for actual churches, but businesses all have to play by the rule of law (or we should just get rid of discrimination law...but if not, it should be applied evenly).

(or alternately, be smart and come up with an alternate, legal reason not to serve the person. it's not that hard.)
5.6.2009 7:36pm
Ben Abbott (mail) (www):
I'm at a loss as to why government should concern itself with marriage at all (beyond the obvious contractual commitements).

The debate of SSM illuminates a special interest group I had not been aware of before. Namely, those who engage in cross gender unions / contracts / marriage.

I'd really like to see the government get out of the business of entitlements for special interests. Govenment should invest in infrastructure and opportunity. And both should be available to all on a neutral basis.
5.6.2009 7:36pm
Guest14:
2) being gay is not normal, e.g. natural.
What do you mean by "natural"?
5.6.2009 7:39pm
PC:
2) being gay is not normal, e.g. natural.

What do you mean by "natural"?


It can't refer to what happens in nature, because there are multiple examples of species that have members that engage in homosexual behavior.

Other than that my experience is similar to Kimball's. As a married heterosexual, I have no problems with a married homosexual couple having the same legal protections and benefits my wife and I enjoy. Now if my brother would only settle down with a nice guy...
5.6.2009 7:47pm
PubliusFL:
js: (or alternately, be smart and come up with an alternate, legal reason not to serve the person. it's not that hard.)

That's called a "pretext." Not very good insurance against a lawsuit.
5.6.2009 7:53pm
Yankev (mail):
JohnD

serving non-Orthodox Jews is so against kosher certification, then how do glatt kosher delis get away without checking people's status at the door? I've eaten at glatt kosher delis, yet I have never worn a tallit katan.
I've already answered this. And I never said it is. I said that preparing food without participation of the mashgiach (at whatever level of supervision is required by the agency) is against the certification.


For that matter, in the recent controversy over the Rubashkin kosher meat company, it was made clear that Rubashkin was hiring illegal immigrants from Mexico to prepare their kosher meat.
No; the slaughtering and the essential elements of making the meat kosher were performed by observant Orthodox Jews, and any handling of the meat by non-Jews was done under Rabbinic supervision.

Are you suggesting that a significant proportion of illegal immigrants from Mexico are, in fact, Orthodox Jews?
Other than an indirect attempt to bring kashrus into disrepute, what is your point about the immigrants being illegal?


Under the laws of kashrut, gentiles can prepare food.
True, depending on what kind of food, what kind of preparation, and what level of supervision. As an example of when it is not permitted, check out the laws of bishul akum. But under the laws of kashrut, any public facility requires Rabbinic supervision, regardless of who is preparing what. As I mentioned several times, whether this can be a supervisor who comes and goes or whether a constant supervisor is needed depends on a host of factors.
How then would someone lose their certification because their food was being provided to non-Jews?
5.6.2009 8:00pm
John Moore (www):
Kimball (mail):

I have concluded the following: 1) being gay is NOT a choice 2) being gay is not normal, e.g. natural.

Being gay is not a choice for many. It is for some. It is probably much more of a choice for females than males. It's really hard to find absolute distinctions in human psychology.
3) if being gay is not a choice and not normal then it must be genetic or medical. Therefore, as a legal matter, if being gay is a genetic variant or a medical disorder, to discriminate against gays should be illegal.

Your conclusion is incorrect. There is very strong evidence that insanity is not a matter of choice, and often is genetic and cannot be changed. However, it is certainly legal to discriminate against insane people.
As a religious matter, if being gay is a genetic variant or a medical disorder God would not punish someone for being gay, and, it cannot be a sin.

That is correct in Catholic theology (many, perhaps 40%) priests are homosexual.

It is, however, a sin for anyone to engage in homosexual acts.

Notice that for priests, it is also a sin for them to engage in heterosexual acts.

There is a very clear distinction between identity and actions.
5.6.2009 8:06pm
ChrisTS (mail):
I hereby call for bans on anyone in the following groups getting married, just so my marriage can be better: the left-handed, Buddhists, people who voted for Fred Thompson in any primary, and people whose posting handle includes the word "mouse."

Add, 'people who compare civil rights to watered down wine,' and even my marriage might get a shot of flavor.
5.6.2009 8:07pm
Kimball (mail):
What I mean by natural is: in conformity with the ordinary course of nature; not unusual or exceptional. Let me preempt the next obvious objection/question. There are indeed examples of species that engage in homosexual behavior, however these too are exceptional/unnatural/ not normal, as measured by the percentage of the population and more importantly the purpose of sexual intercourse.
5.6.2009 8:11pm
Guest14:
There are indeed examples of species that engage in homosexual behavior, however these too are exceptional/unnatural/ not normal, as measured by the percentage of the population and more importantly the purpose of sexual intercourse.
I think the "purpose" of sexual intercourse is really what you must be getting at, or you would just be making the wholly uninteresting observation that most people aren't homosexual.

Of course, sexual intercourse doesn't have a purpose. People put it to various purposes, but that's quite a different thing to say.
5.6.2009 8:16pm
Ben Abbott (mail) (www):
John Moore: "Your conclusion is incorrect. There is very strong evidence that insanity is not a matter of choice, and often is genetic and cannot be changed. However, it is certainly legal to discriminate against insane people."

There are objective reasons to "discriminate against insane people". They are unstable and dangerous.

What objective reasons are there to discriminate againts gays?
5.6.2009 8:21pm
Yankev (mail):
Sorry, clicked on Post when I meant to click on block quote.

How then would someone lose their certification because their food was being provided to non-Jews?
I never said they would. Please read more carefully. I said they would lose certification for preparing food in the absence of the supervisor, and that the certifying organization is free to withhold a supervisor for events that no Orthodox Jew should take part in. Thus the caterer is forced with choosing between legal sanctions for declining to hold the event, or loss of his kosher certification if he holds the event.

You have responded by saying that it cannot happen and by mistating the grounds for losing his certification. not having the event in his hall, or

Yankev's problem is that he persists on seeing a kosher event hall as more like a synagogue, when it is more like a restaurant.
JohnD, your problem is that you do not understand the role of the certifying agency or the predicament that the caterer is placed in. Your "common sense" approach to kashrus is typical of people who do not keep kosher, have not studied kashrus in any depth, but think they know more about it than people who do. You seem not to know nearly as much about kashrus as you seem to think you do. An occasional meal at the kosher deli does not make you an expert. Trust me -- I'm definitely not an expert, but I have learned a lot of things about it that you seem not to have learned.

Question: An organization advertises that a kosher lunch will be served at its noon meeting. They order a tray of cold cuts from the local kosher deli, who has their Jewish but non-observant driver deliver the order. Somehow the deli forgot to place a seal on the order, or the seal fell off in the van, and the tray arrives wrapped in plastic in an unsealed paper bag, with the name of the deli on the paper bag but nowhere else. Is the meat kosher when it arrives?

Same hypothetical but this time the deli properly seals the order. When the order arrives, non-Jewish staff takes the tray into the adjoining kitchen (which is empty), unwraps it, throws away the wrapper and seal, and brings the tray back into the meeting room and sets it on the table. In the mean time, the janitor arrives and empties the trash from the kitchen. You arrive at the meeting shortly afterward. Is the meat kosher when you arrive?

If you think that in either situation the meat is kosher, you are mistaken.

I do not have the time to educate you further. You strike me as an educated man. An educated man recognizes the limits of his own knowledge.
5.6.2009 8:24pm
Borealis (mail):
If you think through the whole matter, the real legal issue in SSM is why the government should grant legal rights to a couple of people instead of individual persons. It is mostly single adults that get discriminated against, not just gay couples.
5.6.2009 8:28pm
Ben Abbott (mail) (www):
Kimball: "What I mean by natural is: in conformity with the ordinary course of nature; not unusual or exceptional. Let me preempt the next obvious objection/question. There are indeed examples of species that engage in homosexual behavior, however these too are exceptional/unnatural/ not normal, as measured by the percentage of the population and more importantly the purpose of sexual intercourse."

I fear you/we may soon descend into a war on semantics.

Normal is a myth. No one is "normal". Variance from the norm is the norm. There is a lot of diversity among individuals. The question is; Why is diversity in sexual orientation is harmful to society? ... or perhaps; Why is gay marriage harmful to society?
5.6.2009 8:29pm
PubliusFL:
Guest14: Of course, sexual intercourse doesn't have a purpose.

That's clearly not true, though it depends to some extent on what the definition of "purpose" is (similar to the various meanings of "cause"). But the basic purpose - that for which it exists - is facilitating reproduction, despite the fact that humans and other species have also managed to put it to other purposes. Just as the basic purpose of the ear is to facilitate hearing, though humans have managed to put it to other purposes like decoration (e.g. with earrings) and cutting parts of it off to give to prostitutes (e.g. Van Gogh). The fact that these other things have been and can be done with ears does not mean that their basic purpose is not to facilitate hearing.
5.6.2009 8:33pm
Randy R. (mail):
First, thanks to Kimbell for his terrific analysis and insight. This is exactly why it is so important for gay people to come out to their friends and relatives. Studies have shown the exact same thing -- when people know a gay person, they are much less likely to discriminate.

It's not hard to fathom why. The reason we discriminate against anyone is because of fear: Fear that they are evil or horrible, fear of not following god's command to hate gays, and so on. Take away that fear, and there is no reason to hate or to discriminate.

And this is exactly why people cmr are afraid that if SSM is allowed, people will realize that all these fears (our culture will vanish! People won't have children anymore!) are baseless. So they must oppose SSM, despite all evidence who shows that in those places where SSM exists, nothing has happened. NONE of the fears have materialized.

Question for Kimball: What were your beliefs before you knew your brother is gay? Were you for discrimination? Did you think it a sin?

And if you did change your beliefs, what effect has it had on your life? Did god make you impotent? Did he smite you in some fashion? Have your family values collapsed? Any negative effects whatsoever, now that you accept gays?
5.6.2009 8:46pm
Guest14:
But the basic purpose - that for which it exists - is facilitating reproduction, despite the fact that humans and other species have also managed to put it to other purposes.
I'm sorry, but this just reads as gibberish to me. Do you think that the "purpose" of the sun is to provide light for photosnythesis in plants? If not, please distinguish.
5.6.2009 8:48pm
Oren:

If you think that in either situation the meat is kosher, you are mistaken.

Ah, the objectivist Jew.

The proper answer, of course, is that it's Kosher if it conforms to Jewish law to the satisfaction of the person eating it. Of course, many people wisely chose to outsource the investigation of the facts, since most individuals are not allowed to inspect the workings of most eateries/factories/slaughterhouses and whatnot.

More to the point, I do agree that any caterer should be allowed to act within the confines of his values. Of course, in doing so he loses any right to complain when he is boycotted based on those values.
5.6.2009 8:49pm
cmr:
You forgot stealing your precious bodily fluids, there Mr. Foil Hat.


I wont even ask.


It baffles me that you could attribute that as a positive motive for people that want to increase the availability of marriage. Maybe SSM will cheapen marriage but surely that can't be the goal.


Well, it isn't for everyone. I do think that there is a component of the push for gay marriage that believes marriage is a terrible social construct that oppresses women and children, and yet they know society still views it as something of a sacrament. So claiming that two men and two women are marriageable puts something of a blemish on it, and people start to look down on it. It's no longer a unique union that's about something specific; it's just something two people do. It's the implication that two male roommates are just as deserving of marriage incentives as a man with a wife and kids is. Marriage doesn't seem that important when you think about it.

Wow, I didn't know marriage worked like that: my marriage will be more flavorful and possibly have more alcohol content if fewer people can get married. I hereby call for bans on anyone in the following groups getting married, just so my marriage can be better: the left-handed, Buddhists, people who voted for Fred Thompson in any primary, and people whose posting handle includes the word "mouse."


I don't know why people never will understand that the whole "this will ruin marriage" argument is based on a generational understanding and not current adults.


You are speaking gibberish. I realize that it is easy to parrot others, but think about what you say.

Marriage is a civil contract resulting in a legal status or a religious sacrament (take your pick).

And the only thing that can "destroy" it is termination of the contract/legal status through divorce or the voiding of the sacrament ab initio through annulment (take your pick).

If your real concern is maintaining the desirability of marriage againt the trend of couples just deciding to live together without bothering to formalize their relationship (or worse single unwed parents), I would think that you would see the gay community's desire to formalize their relationships through civil recognition of marriage in a positive light.


Gay marriage exists because people have made it cheap by marrying for the wrong reasons, and divorcing for the wrong reasons.
5.6.2009 8:59pm
Ben Abbott (mail) (www):
Guest14: "Do you think that the "purpose" of the sun is to provide light for photosnythesis in plants?"

Your analogy is lost on me. Are you arguing for the purpose of sex being reproduction or against.

The sun has no objective purpose. However, sex has both an objective purpose (reproduction) and a purpose that is subjective to each individual who engages in the activity.
5.6.2009 9:01pm
Oren:

However, sex has both an objective purpose (reproduction) and a purpose that is subjective to each individual who engages in the activity.


How did you go about teleologically assigning objective purposes?
5.6.2009 9:04pm
Bob VB (mail):
I'm sorry, but this just reads as gibberish to me. Do you think that the "purpose" of the sun is to provide light for photosnythesis in plants? If not, please distinguish.
Really, the purpose of sex is social binding, that it also occasionally leads to breeding is just a great plus. I mean shouldn't we go on what its used mostly for if we are designating a 'purpose' here?
5.6.2009 9:09pm
IB Bill (mail) (www):
Fight the good fight, cmr. Not everyone disagrees with you.

FTR, "precious bodily fluids" is a reference to a lunatic general in "Dr. Strangelove." The general believes communist infilfrators are trying to control humanity through fluoridation of the water, i.e., corrupting his precious bodily fluids.
5.6.2009 9:13pm
Askren:
How does SSM infringe on religious liberty?
5.6.2009 9:14pm
Bob VB (mail):
How does SSM infringe on religious liberty?
Is like that joke about the big wall down the middle of Heaven you have to be quiet around because the people on the other side like to pretend they are the only ones there.

Some people like to pretend they are the only ones married and finding out everyone does upsets their chi...
5.6.2009 9:18pm
Tim J.:
It's really hard to take seriously an "analysis" of this issue that breezily declares that there have been "zero" conflicts which doesn't even mention the Boston Catholic Charities adoption center, or the wedding photographer case, or Yeshiva University, or eHarmony, or Ocean Grove, or... well, any of the many cases. It's not like these cases were hard to find out about; as has already been linked, even NPR, that bastion of the Religious Right, has noticed them.

How can you not address *any* of these when discussing possible conflicts between gay rights and religious rights? To not know about them would require a powerful effort to remain ignorant, and to omit them is tantamount to dishonesty.

DC: The post deals with several of these cases. Please read the whole thing, including the part that says "Click here to read the rest." If you can connect these cases to gay marriage, rather than to antidiscrimination law, I'd like to hear the rationale.
5.6.2009 9:19pm
Randy R. (mail):
cmr: " I do think that there is a component of the push for gay marriage that believes marriage is a terrible social construct that oppresses women and children."

I see. And so for this component to achieve it's goal, it will allow gay people to get married, and hope --against all the evidence -- that striaght people will stop getting married? So gay people are just pawns in this big tussle?

" and yet they know society still views it as something of a sacrament."

That's true. why can't two gay men also view it as a sacrament? Afterall, many churches today do SSM, and that makes it a sacrement.

" So claiming that two men and two women are marriageable puts something of a blemish on it, and people start to look down on it."

Nope. This is true only if you believe that the love that exists between two men can't ever possibly be real."

" It's no longer a unique union that's about something specific; it's just something two people do."

As has been since the dawn of time. Arranged marriages are far more traditional than today's where people choose to just do. Is that what you would prefer?

" It's the implication that two male roommates are just as deserving of marriage incentives as a man with a wife and kids is."

Or perhaps just as deserving as two gay men deeply in love and committed to sharing their lives together, and raising their children. but you don't believe two men are capable of such love, eh?
5.6.2009 9:19pm
Ben Abbott (mail) (www):
Oren asked: "How did you go about teleologically assigning objective purposes?"

I don't.

What is teleological about the fact the sex is a precusor to reproduction?
5.6.2009 9:19pm
JoshL (mail):

If you think that in either situation the meat is kosher, you are mistaken.


That's not quite right. The meat may be kosher, but whether one is allowed to trust that it is kosher is another matter. A more clear cut example of this may be seen in alcohol: the Star-K and CRC hold that Bailey's is not to be drunk, because it's a mixed liquer that's unsupervised. The London Beis Din holds it's fine, because they've checked the ingredients and Bailey's doesn't run anything treif on the lines. It may be kosher, but that doesn't help if you're holding by the Star-K or CRC.

A similar example to the one that JohnD objects to would be a kosher cruise with mixed dancing. Orthodoxy holds that that's forbidden, and there has been a lot of controversy over whether or not certification agencies will certify a kosher cruise with mixed dancing. Now substitute "a gay marriage" for "mixed dancing" and you've got the situation.


If serving non-Orthodox Jews is so against kosher certification, then how do glatt kosher delis get away without checking people's status at the door? I've eaten at glatt kosher delis, yet I have never worn a tallit katan.


This is a strawman. You're suggesting that the problem is serving Jews who are not observant in a private way (unless, of course, you're going into the deli without a shirt on, in which case they could probably refuse to serve you on other grounds). You're probably not breaking shabbat unless the place is open on shabbat, and if it is and you are, you're not being obvious about it (unless, again, you stand up and shout it or go around wearing a poster, in which case they can kick you out for annoying other customers); you're not actively breaking kashrut, unless you bring in outside food, which isn't permitted; you're not obviously violating the laws of taharat hamishpacha (and if you are, we're back to it being legitimate to throw you out again).

The situation with all of the above is that you are not doing anything that is publicly and obviously against what the certification agency will stand for. You can, I suppose, argue that gay marriage itself is not forbidden (only the sex that goes with it), but the presumption is that gay marriage is legitimizing something that the mashgiach disagrees with, just as they might refuse to provide certification for an event with mixed dancing.
5.6.2009 9:23pm
Ben Abbott (mail) (www):
Tim asked: "How can you not address *any* of these when discussing possible conflicts between gay rights and religious rights?"

I think the problem is one of definition of terms.

Regarding religious liberty, it generally ends when it is materially harmful to the liberty of another.
5.6.2009 9:26pm
Bob VB (mail):
It's really hard to take seriously an "analysis" of this issue that breezily declares that there have been "zero" conflicts

You are confusing the issues - the 'zero' comment was talking about marriage equality, every single one of the items you mention are about civil rights conflicts aren't they?
5.6.2009 9:39pm
DangerMouse:
How can you not address *any* of these when discussing possible conflicts between gay rights and religious rights? To not know about them would require a powerful effort to remain ignorant, and to omit them is tantamount to dishonesty.

Of course it's dishonesty. We're talking about fake "marriages" here. A little dishonesty isn't going to stop them when their goal is a much bigger dishonesty.
5.6.2009 9:39pm
Askren:
Tim J.

Aren't the conflicts you note between anti-discrimination law and religious practice, not between SSM and religious practice?
5.6.2009 9:57pm
John D (mail):
Tim J,

Actually, citing Catholic Charities of Boston is "tantamount to dishonesty."

Here are the facts of the case (again):

CCB was providing adoption services as an agent of the Commonwealth of Massachusetts. Instead of starting a government agency, Massachusetts turned to a private company to subcontract this. Of course, working in the place of an agency, they had to follow all state non-discrimination laws.

They did this with no complaint. CCB placed children in the homes of same-sex couples.

Then came Goodridge.

The Bishop's office said that unless CCB stopped providing adoptions to same-sex couples, their charter would be yanked, closing them down.

Several board members resigned in protest.

CCB tried to get an exemption (other religious adoption agencies have them, but they adopt only within their own religious group), but the state refused (likely because CCB was the public provider).

CCB was caught between the Church and the State. They wanted to do what the State asked, but the Church wouldn't let them. The Catholic Church put CCB out of the adoption business.

Now, should we move on to how the Ocean Grove Camp Meeting Association got a property tax exemption for a building on public property by agreeing to follow all state anti-discrimination laws and how they reneged on that promise?
5.6.2009 9:59pm
John D (mail):
And further,

Shame on Professor Wilson
It's one thing when a anonymous blogger, a Tim J, erroneously cites cases that have little, if anything to do with same-sex marriage and hugely distorts the facts.
In Iowa, the state's attorney general told county recorders that they must issue licenses to same-sex couples or face criminal misdemeanor charges and even dismissal.

They're state employees, Professor Wilson. Should a DMV official be able to refuse to renew your license because he feels that woman shouldn't drive? What if he's got a religious objection to this?
New Mexico's Human Rights Commission fined a husband-wife photography team more than $6,000 because they declined to photograph a same-sex commitment ceremony

Commitment, not marriage. Should they have a blanket right of refusal? Could they refuse to photograph a ceremony of a religion they didn't like? New Mexico doesn't allow same-sex marriage. Are you arguing that there should be no laws protecting gay people from discrimination?
In New Jersey, authorities yanked the property tax exemption of a church group that denied requests by two lesbian couples to use the group's boardwalk pavilion for their commitment ceremonies.

But, Professor Wilson, they got this exemption by promising to follow all state anti-discrimination laws. Are you suggesting that people ought to be able to ignore laws they don't like?

Professor, what are you suggesting here?
5.6.2009 10:08pm
Owen Hutchins (mail):

I do think that there is a component of the push for gay marriage that believes marriage is a terrible social construct that oppresses women and children, and yet they know society still views it as something of a sacrament. So claiming that two men and two women are marriageable puts something of a blemish on it, and people start to look down on it. It's no longer a unique union that's about something specific; it's just something two people do. It's the implication that two male roommates are just as deserving of marriage incentives as a man with a wife and kids is. Marriage doesn't seem that important when you think about it.


Speaking of posting gibberish, you seem to have met your quota of it right there. Can you actually find anyone that says this, or are you just listening to the imaginary homosexual in your head?
5.6.2009 10:08pm
John Moore (mail) (www):

CCB was caught between the Church and the State. They wanted to do what the State asked, but the Church wouldn't let them. The Catholic Church put CCB out of the adoption business.

What sophistry.

The Catholic Church was acting out of its religious doctrine. CCB was put out of adoption because to stay in business would violate its own religious doctrine. What is it about "Catholic" Charities that is so mystifying?

This was a clear case of a religious group losing its ability to do good (a primary purpose of the Church) because of the gay movement.
5.6.2009 10:10pm
Owen Hutchins (mail):
They lost the ability to act as an agent of the State. They were receiving government funding for the services provided, and were required to follow all anti-discrimination laws for that reason. They could have continued to operate as they desired, but that would have meant not getting that government funding.
5.6.2009 10:45pm
Joseph Slater (mail):
I don't know why people never will understand that the whole "this will ruin marriage" argument is based on a generational understanding and not current adults.

It's not that people "don't understand" the argument that SSM will "ruin marriage" based on a "generational understanding." It's just that they reject the argument because there is no evidence for it and, frankly, it's absurd on its face. You tipped your hand long ago when you argued that the goal of SSM proponents was to ruin marriage. Do you actually know any gay people who want to get married? I do, and your characterization of them is stupid and insulting.
5.6.2009 10:50pm
Tim J.:
They could have continued to operate as they desired, but that would have meant not getting that government funding.


This is not true.

To run an adoption agency at all in Massachusetts, they need a license from the state, and for that they would have had to agree to place children with gay couples, something not allowed under their religious doctrine. Government funding is a red herring.
5.6.2009 11:24pm
Randy R. (mail):
"To run an adoption agency at all in Massachusetts, they need a license from the state, and for that they would have had to agree to place children with gay couples, something not allowed under their religious doctrine"

But it wasn't against their religious doctrine for many years, because they DID place children in gay households. It was only after SSM was allowed in Mass.

So why was it in line with religious doctrine for so many years, then against religious doctrine just at the time when SSM was allowed?

It couldn't be that religious doctrine is dictated by arbitrary means, could it?
5.6.2009 11:32pm
Cornellian (mail):
There is no Free Exercise bubble of immunity from secular law when you're running a business. The Catholic Church cannot run an adoption business in Massachusetts without regard to state law anymore than they can run a brick laying business without regard to state law.
5.6.2009 11:34pm
PCK:
Oren;
"Of course, in doing so he loses any right to complain when he is boycotted harassed based on those values."

There, fixed it for you.
5.6.2009 11:35pm
Cornellian (mail):
The Catholic Church was acting out of its religious doctrine. CCB was put out of adoption because to stay in business would violate its own religious doctrine. What is it about "Catholic" Charities that is so mystifying?


You might want to ask that question of CCB itself since its board voted unanimously to continue adoptions in compliance with state law, only to be ordered by the Catholic Church to shut down rather than place children with same-sex couples.
5.6.2009 11:36pm
Danny (mail):
Whether it seems arbitrary to us or not, the Church is very clear on this issue.. on the other hand, it is a public service, open to everyone.

I can really see both sides, I don't know which way to go...
Why can't we have a religious exemption? I know that it's a bit shady on principle, but since it is a big and diverse country and there are many adoption agencies that do accept gay couples, gays are not severely impacted and at least the Catholic agencies can continue to offer services. At the very least they should still be licensed right?
5.6.2009 11:42pm
Cornellian (mail):
Whether it seems arbitrary to us or not, the Church is very clear on this issue.

If by clear you mean that the Catholic Church issued a clear order to CCB to stop placing children with same-sex couples, then that is true. If by clear you mean obviously prohibited by Catholic religious doctrine, that appears not to be the case since CCB had been placing children with same-sex couples for years before the Vatican ordered them to stop.
5.6.2009 11:58pm
John Moore (mail) (www):

But it wasn't against their religious doctrine for many years, because they DID place children in gay households. It was only after SSM was allowed in Mass.

So why was it in line with religious doctrine for so many years, then against religious doctrine just at the time when SSM was allowed?

It couldn't be that religious doctrine is dictated by arbitrary means, could it?


There should be no confusion. CCB was operating against long standing church doctrine. The Church corrected that.
5.7.2009 12:10am
John Moore (mail) (www):

Why can't we have a religious exemption? I know that it's a bit shady on principle, but since it is a big and diverse country and there are many adoption agencies that do accept gay couples, gays are not severely impacted and at least the Catholic agencies can continue to offer services. At the very least they should still be licensed right?

It makes perfect sense. However, the most powerful of gay activists would never accept that unless forced upon them. The gay rights movement leaders are often far more radical than the people they purport to speak for. This is the same movement that threatened to send HIV infected individuals to blood banks (before there was testing) in order to blackmail the blood banks into not asking about sexual preference.
5.7.2009 12:13am
Cornellian (mail):

Why can't we have a religious exemption?

We do have a religious exemption, the question is the proper scope of that exemption. No one suggests that the Catholic Church be required to ordain female priests or recognize civil divorces. Nor do many people suggest that the Catholic Church has some kind of free exercise right to shelter illegal immigrants from the INS, as the Archbishop of Los Angeles once talked about doing.
5.7.2009 12:34am
Danny (mail):
Seeeeriously? That's insane, I'm glad I wasn't around for that (born in 1980). Too bad the US has chosen the path of the culture wars that drown out communication and empathy on either side
5.7.2009 12:41am
Ricardo (mail):
That's clearly not true, though it depends to some extent on what the definition of "purpose" is (similar to the various meanings of "cause"). But the basic purpose - that for which it exists - is facilitating reproduction, despite the fact that humans and other species have also managed to put it to other purposes.

This is the argument from natural law and the part you leave out is that it has an explicitly theological underpinning: it assumes a supreme being designed us and other animals and that by observing the natural world, we can infer the "purpose" of certain functions or parts of our anatomy. In other words, it assumes intelligent design. Without intelligent design, the term "purpose" has no meaning here.

Ironically, and someone more on point, many anti-SSM advocates claim that gay marriage is nothing like mixed-race marriages which were permitted following Loving v. Virginia in the U.S. The trial court judge in that case, as quoted by the Supreme Court, claimed in his decision that it was clear God wanted to keep the races separate since He put them on different continents. With arguments like the above "natural law" hypothesis, claims that mixed-race and same-sex marriage are nothing alike start to melt away.
5.7.2009 1:13am
PubliusFL:
Ricardo: This is the argument from natural law and the part you leave out is that it has an explicitly theological underpinning: it assumes a supreme being designed us and other animals and that by observing the natural world, we can infer the "purpose" of certain functions or parts of our anatomy. In other words, it assumes intelligent design. Without intelligent design, the term "purpose" has no meaning here.

Not at all. What you say comports with my personal beliefs, but is not what I had in mind when speaking of purpose. From an evolutionary perspective, there are reasons some traits survive and develop and others disappear. It is perfectly intelligible to speak of the "purpose" of traits selected for through natural selection: the purpose of a naturally selected trait is the reason the trait causes its bearer to survive or reproduce more effectively. See, for example http://www.talkorigins.org/indexcc/CI/CI120.html. Whether you believe in intelligent design or natural selection, the purpose of eyes is to see, the purpose of ears is to hear, and the purpose of sex is to facilitate reproduction (and specifically reproduction in a way that promotes genetic diversity better than asexual reproduction).
5.7.2009 1:59am
Bob VB (mail):
Whether you believe in intelligent design or natural selection, the purpose of eyes is to see, the purpose of ears is to hear, and the purpose of sex is to facilitate reproduction (and specifically reproduction in a way that promotes genetic diversity better than asexual reproduction).

No, the purposes of ears are hearing &balance with balance probably the most important of the 2. The purpose of sex is social bonding, marriage, and sexual reproduction, all 3 probably equally important to human kind and civilization as we experience it today. We are still discovering all the essential functions of many aspects of our body - it would be pure arrogance to say something as complex as the human sexual response has but 1 purpose.
5.7.2009 2:53am
Cornellian (mail):
Whether you believe in intelligent design or natural selection, the purpose of eyes is to see, the purpose of ears is to hear, and the purpose of sex is to facilitate reproduction.

You're making the common mistake of attributing purpose to a physical process - natural selection - which has none. Natural selection doesn't have a purpose anymore than gravity does.

And if the purpose of a mouth is to eat, did you object when we started using them to communicate? How about to kiss? Did you object to wearing clothing even though our skin and hair is already there to protect us from the elements? Do you find condoms immoral because they interfere with the "purpose" of male-female genital contact?
5.7.2009 3:10am
Perseus (mail):
You're making the common mistake of attributing purpose to a physical process - natural selection - which has none.

It's only a mistake if you accept the dubious assumptions of modern philosophy and science.
5.7.2009 3:25am
Nick056:
This debate will largely be governed by the rules of historical contigency.

Eventually, churches will not oppose or object to the specific equality measures passing this year. Some people in those churches will keep objecting, and feel that their institution was coerced by radical pressure groups.

But by and large, these institutions will have accepted homosexual marital equality for the same reason the Catholic Church originally clarified and asserted the dignity of homosexual persons -- because doing so allows a church to privide proper pastoral care for all its members.

I'm not hostile to churches at all. On the contrary, I think most of them will do the right thing on their own, and should be permitted to do so in a time of their choosing. If we have to assure them that they won't lose their tax exemptions in the meantime, by all means. I consider the virtual subsidy of a guaranteed tax exemption a fine bargain for the passage of marriage bills.
5.7.2009 4:10am
BABH:
You folks are talking at cross purposes.

For some of you, "purpose" is merely synonymous with "function". For others of us, it implies agency.

This thread-jack started with the claim that homosexuality is unnatural because it serves no "purpose". This is probably false with respect to the first sense of "purpose". It is trivially true for the second sense. That is to say, homosexuality is so prevalent in humans (and particularly in those with older siblings) that it probably does confer a survival advantage on the group. It seems to have an evolutionary "purpose". But evolution itself is not purposive (genes are not conscious agents), so homosexuality has no "purpose" in the second sense. Neither does anything else - for that, you need to import a teleology.

The real pitfall here is the natural/unnatural dichotomy. To the empirically minded, there is nothing in the world of experience that is unnatural. We get suspicious of people's motives when the word is bandied about, because it usually means that someone is trying to sneak in a moral claim disguised as science.
5.7.2009 4:24am
Ricardo (mail):
From an evolutionary perspective, there are reasons some traits survive and develop and others disappear. It is perfectly intelligible to speak of the "purpose" of traits selected for through natural selection: the purpose of a naturally selected trait is the reason the trait causes its bearer to survive or reproduce more effectively. See, for example http://www.talkorigins.org/indexcc/CI/CI120.html.

Only the first sentence is intelligible. It's quite true that many biologists use the term purpose in discussing evolution. Richard Dawkins -- even as early as "The Selfish Gene" before he became an outspoken atheist -- discouraged this usage exactly because it leads to sloppy thinking. There is no such thing as an "objective" or "primary" purpose of a trait. Traits simply exist and they get propagated because they do not impair an organism's fitness. As an example...

(and specifically reproduction in a way that promotes genetic diversity better than asexual reproduction).

This is not established science. Again, that's the problem with throwing around the term "purpose" -- you start looking for the "purpose" of sex or the "purpose" of "junk DNA" that we all carry around while implicitly assuming a purpose exists in the first place. Dawkins has expressed skepticism of this genetic diversity hypothesis, for instance.
5.7.2009 4:43am
Owen Hutchins (mail):

This is the same movement that threatened to send HIV infected individuals to blood banks (before there was testing) in order to blackmail the blood banks into not asking about sexual preference.



Aside from the simple falsehood here, blaming an entire group for the purported actions of a few, were you aware that the Red Cross does in fact ask about sexual activity including homosexual contact? If there was any blackmail, it didn't take.
5.7.2009 6:56am
Tim J.:
If by clear you mean that the Catholic Church issued a clear order to CCB to stop placing children with same-sex couples, then that is true. If by clear you mean obviously prohibited by Catholic religious doctrine, that appears not to be the case since CCB had been placing children with same-sex couples for years before the Vatican ordered them to stop.


Cornellian, you keep repeating this as if it's significant. Local individuals were acting in a way contrary to Catholic doctrine. Higher-ups found out and put a stop to it. Happens all the time, with respect to many parts of religious doctrine. Why is that so hard to understand?
5.7.2009 8:05am
Oren:

BA wrote: However, sex has both an objective purpose (reproduction) and a purpose that is subjective to each individual who engages in the activity.


Oren asked: "How did you go about teleologically assigning objective purposes?"

BA wrote: I don't.

What is teleological about the fact the sex is a precusor to reproduction?



Nothing, but that fact doesn't mean anything about the purpose of sex. The sun is a precursor to photosynthesis, that doesn't mean the sun exists for the purpose of photosynthesis. Causal relationships, in and of themselves, do not prove anything of a teleological sort.

You assert that sex has an objective purpose. I want to know on what basis you make such a assertion.
5.7.2009 9:15am
Oren:


There should be no confusion. CCB was operating against long standing church doctrine. The Church corrected that.


Fair enough, but the timing was pretty suspect.
5.7.2009 9:22am
Seamus (mail):

If by clear you mean that the Catholic Church issued a clear order to CCB to stop placing children with same-sex couples, then that is true. If by clear you mean obviously prohibited by Catholic religious doctrine, that appears not to be the case since CCB had been placing children with same-sex couples for years before the Vatican ordered them to stop.



So I guess you think the Vatican is no better qualified to determine what is Catholic doctrine than the CCB is.
5.7.2009 10:10am
Yankev (mail):

The proper answer, of course, is that it's Kosher if it conforms to Jewish law to the satisfaction of the person eating it.
Sorry, Oren. That is not the halacha, even according to Conservative Judaism. As to kahsrus as understood by Orthodox Judaism, the fact that I someone may be comfortable eating basar nislam me'ayin does not somehow make the meat kosher, any more than somoen's comfort eating nevela, trefos or sheratzim makes those kosher.

I do not know what position CJ takes regarding basar nislam me'ayin, but their position on nevela, trefos and sheratzim is the same as the one I just expressed. Your definition would do away altogether with halacha. Given that the discussion is focussed on what is kosher AS UNDERSTOOD BY ORTHODOX JEWS, please do not introduce irrelevancies that can only confuse the discussion.
5.7.2009 10:18am
Yankev (mail):

I do agree that any caterer should be allowed to act within the confines of his values. Of course, in doing so he loses any right to complain when he is boycotted based on those values.
I could live with that.
5.7.2009 10:19am
Yankev (mail):

That's not quite right. The meat may be kosher, but whether one is allowed to trust that it is kosher is another matter.
JoshL, my understanding is that once meat becomes basar nislam m'ayin, it ceases to be kosher (absent adequate indicia of where it came from), but I have relied on what I have been told and have not learned it "inside", other than a passing reference in Maseches Bei'ah. Can you cite me to a primary source that says the meat remains kosher? Or do you simply mean that unless and until the indicia are brought the meat must be treated as non-kosher, but that once it is clearly established that the meat has been neither switched nor tampered with, it can again be treated as kosher?

In either case, though, clearly the meat cannot be relied upon at the point mentioned in my two hypotheticals.
5.7.2009 10:28am
Yankev (mail):

The Catholic Church cannot run an adoption business in Massachusetts without regard to state law anymore than they can run a brick laying business without regard to state law.
Once we start calling a non-profit public service a "business", we have descended to a level of intellectual dishonesty that makes productive dialogue impossible.


So I guess you think the Vatican is no better qualified to determine what is Catholic doctrine than the CCB is.
Seamus, don't be surprised. JohnD and Oren also know more about kashrus than people who actually keep kosher, including every Rabbi I've ever discussed it with.


RandyR

Could they refuse to photograph a ceremony of a religion they didn't like?
You keep bringing this down to a matter of likes and dislikes. Can we say "Could they refuse to photograph a ceremony that their religion believes to be immoral?" Yes, I would allow a Catholic photographer to decline a divrocee's wedding, or a Jewish photographer to decline to photograph an intermarriage, of the remarriage of a divorced woman who did not have a religious divorce.

There is a point where non-discrimination ends and involuntary servitude begins. Suppose some religion sprung up that believes the marriage has to be publicly consummated -- are you saying the photographer should have no right to decline?

JoshL

This is a strawman.
Thank you. I have pointed this out repeatedly to John D, but he persists in mis-stating my argument. Perhaps he will listen to you. Or perhaps he has too great an emotional stake in his belief that the situation could never arise.
5.7.2009 10:57am
Bob VB (mail):
To the empirically minded, there is nothing in the world of experience that is unnatural.

Or its corollary

Kiri-kin-tha's First Law of Metaphysics "Nothing Unreal Exists"
5.7.2009 11:20am
Owen Hutchins (mail):

The Catholic Church cannot run an adoption business in Massachusetts without regard to state law anymore than they can run a brick laying business without regard to state law.

Once we start calling a non-profit public service a "business", we have descended to a level of intellectual dishonesty that makes productive dialogue impossible.


Do they have an absolute right to get government funding to perform such services? If I decide to open an adoption agency, does the state have to pay me?
5.7.2009 11:44am
cathyf:
We are still discovering all the essential functions of many aspects of our body - it would be pure arrogance to say something as complex as the human sexual response has but 1 purpose.
The biology of sex is that orgasm, in both males and females, produces large amounts of the hormone oxytocin, which appears to cause emotional bonding in mammals. Humans are an interesting species, in that we are the ones who seem to have the highest fraction of sexual activity that does not result in conception (even without birth control) and we also have the longest period of dependency in our offspring.

Compare to, say, cats. Fathers have no role past conception in the success/failure of their offspring, and kittens leave their mothers after about 8 weeks, and after that the mother's behavior doesn't affect them either. So a litter of kittens doesn't need daddy for anything, and they only need to keep mama alive and interested in them for a couple of months and then they don't need her anymore, either. Contrast with humans -- a mother and father have 3 children, ages 1, 3, &5. Those children are still pretty much totally dependent upon their parents, and if something happens to their parents they need replacements/surrogates right quick or they will die.

So it is perfectly plausible to argue that in humans, as distinct from the rest of the animal kingdom, the primary purpose of sex is to keep two parents (natural, adopted or one of each) emotionally bound to each other so that they can do the most effective job at providing a family life for the decades of childrearing that each human requires. In other words, conception from one male and one female is necessary to get a human, but it is far far from sufficient as far as successful reproduction goes. And, obviously, the non-conceptive aspects of sex in reproduction apply to step-parents, adoptive parents, etc., and is not limited to heterosexual relationships.
5.7.2009 11:52am
Tim J.:
Do they have an absolute right to get government funding to perform such services? If I decide to open an adoption agency, does the state have to pay me?


Well, your answer to this probably depends on whether you think the purpose of that money is to help get kids adopted, or whether you think it is there to ensure that gay couples are treated exactly like all other couples.

Catholic Charities happened to be pretty good at the former, not so much at the latter. Apparently, the latter is more important.
5.7.2009 12:21pm
Oren:
Your definition would do away altogether with halacha.

Why is that? The wisdom of the past is guidance for the future. I wouldn't give that wisdom away for all the treif in the world.


Given that the discussion is focussed on what is kosher AS UNDERSTOOD BY ORTHODOX JEWS, please do not introduce irrelevancies that can only confuse the discussion.

Orthodox Jews are a large and varied bunch and you do them a disservice by assuming that they all conform to the precise meaning you assign. Differences about the continued need for Cholev Israel, given the strict laws that prevent the wrong for which the stricture was designed (the mixing of milk from a non-kosher animal). Per the OU

OU policy is that in the United States, the Department of Agriculture's regulations and controls are sufficiently stringent to ensure that only cow's milk is sold commercially. These government requirements fulfill the Rabbinical requirement for supervision.



In many cases, the examples you gave about trivial process-related matters are given back seat to the actual nature of the thing. Kashrut exists in fact, not in certification -- the certification only exists to make it easier to discern the facts without error. Per the OU webpage

Unless a person is an expert in food production, the average consumer cannot possibly make an evaluation of the kosher status, which is why it is important to purchase only those products that have the endorsement of a reliable kosher agency. [ My Emph ]
5.7.2009 12:26pm
Danny (mail):
I assume the Catholic charity also would also be free not to adopt children to a Muslim heterosexual family if they won't adopt them to a Catholic gay couple? Because that would be forcing the children out of Christianity which would be completely unacceptable to Catholic beliefs. The religious exemption would extend to all groups right?
5.7.2009 12:26pm
Oren:

Catholic Charities happened to be pretty good at the former, not so much at the latter.

Actually, they were quite good at both, which they performed concurrently for a long time.
5.7.2009 12:27pm
Tim J.:
You keep bringing this down to a matter of likes and dislikes. Can we say "Could they refuse to photograph a ceremony that their religion believes to be immoral?" Yes, I would allow a Catholic photographer to decline a divrocee's wedding, or a Jewish photographer to decline to photograph an intermarriage, of the remarriage of a divorced woman who did not have a religious divorce.


For that matter, I'd also allow a wedding photographer to refuse to photograph a Bar Mitzvah, or a plain old non-sectarian birthday. Neither of them are weddings, which is what the wedding photographer wants to gear their business towards.

In the understanding of the photographer in question, a gay marriage isn't a wedding either. You may disagree with that definition, but that's the heart of the matter. I prefer the side that leaves people free to do as they choose.
5.7.2009 12:27pm
Oren:

So I guess you think the Vatican is no better qualified to determine what is Catholic doctrine than the CCB is.

Internal Church governance is non of the State's business.
5.7.2009 12:29pm
Yankev (mail):

Orthodox Jews are a large and varied bunch and you do them a disservice by assuming that they all conform to the precise meaning you assign.

I can't count the number of times that people who don't keep kosher have cited differences of opinion about kashrus as proof that there is no such thing, or that kashrus is whatever you want it to be. L'havdil that's line citing differences in opinion about complex tax shelter to prove that there is no internal revenue code, or disagreements about the legality of a given search means that search warrants are never (or always) needed.

As in any legal system, there will inevitably be differences of opinion about the fine details and unanimity about the basics. The differences you cite are much less significant than what you call "trivial process-related matters," about which Orthodox authorities ARE in agreement. And most certainly Orthodox Jews are by definition agree that your theory that kosher means "good enough for the person eating it" is so silly as to need no refutation, as it does away with the concept of kashrus altogether. Don't believe me; take your definition and ask any Orthodox Rabbi. You will not find one who will endorse your definition.


Differences about the continued need for Cholev Israel, given the strict laws that prevent the wrong for which the stricture was designed (the mixing of milk from a non-kosher animal). Per the OU
But there are no differences as to the valdity of the requirement for cholov yisroel. The OU simply holds -- consistent with the opinion of R. Moshe* (zt'l) -- that government supervision is an adequate substitute IN OUR DAY, IN THE UNITED STATES. The OU does not accept cholev stam (i.e. non-cholev yisroel) products from plants located in countries if the government supervision in that country is less stringent than in the US.

Reb. Moshe zt'l himself did not rely on his own lenient opinion. Moreover that opinion is conditioned on cholev yisrael not being readily available, and even then, his opinion stated, a person of spiritual sensitivity (a "baal nefesh") would still not rely on the leniency.

*(For those not familiar with the man and his work, the reference is to Rabbi Moshe Feinshtein -- or in English, Feinstein, a halachic giant of the 20th Century)
5.7.2009 1:20pm
Owen Hutchins (mail):

Well, your answer to this probably depends on whether you think the purpose of that money is to help get kids adopted, or whether you think it is there to ensure that gay couples are treated exactly like all other couples.


This is a false dichotomy. Both were being accomplished quite well, and if the Catholic charity refuses to obey the law regarding public monies, then someone else does it instead (as is happening now).
5.7.2009 2:12pm
Oren:

But there are no differences as to the valdity of the requirement for cholov yisroel. The OU simply holds -- consistent with the opinion of R. Moshe* (zt'l) -- that government supervision is an adequate substitute IN OUR DAY, IN THE UNITED STATES.

Right, that being support for my position that kashrut is a matter of fact (whether the milk is wholly derived from a cow) rather than certification (whether a Jew was there to confirm the fact). That is, whether or not the milk is kosher is a function entirely of the factual origin of the milk, not how one verifies that factual origin (provided, as you said, that the verification can be trusted).


And most certainly Orthodox Jews are by definition agree that your theory that kosher means "good enough for the person eating it" is so silly as to need no refutation, as it does away with the concept of kashrus altogether.

I should clarify. I didn't mean merely "good enough for the person eating it". I meant "complies with the substantive requirements of Law to the satisfaction of the person eating it". Satisfaction here not being merely 'good enough' but presuming an honesty of evaluation.

Perhaps by contrast, the question I pose in return is whether a food that you know for certain complies with the substantive requirements of Law (e.g. a cow you milked yourself while visiting a farm owned by a Gentile) can nevertheless be deficient for failure to meet procedural requirements?


Don't believe me; take your definition and ask any Orthodox Rabbi. You will not find one who will endorse your definition.

I have, and I've gotten different answers as to the question I posed to you above. At least a few have said that food that meets the requirements is kosher regardless of what is said about them.


L'havdil that's line citing differences in opinion about complex tax shelter to prove that there is no internal revenue code, or disagreements about the legality of a given search means that search warrants are never (or always) needed.

I never claimed there is no code, I claim that the code is a substantive, not procedural one. The procedures entailed are there merely to help us fulfill the substantive requirements, not bona-fide requirements themselves.
5.7.2009 2:41pm
John Moore (mail) (www):

Aside from the simple falsehood here, blaming an entire group for the purported actions of a few, were you aware that the Red Cross does in fact ask about sexual activity including homosexual contact?

I was referring to the gay rights movement radicals, who were very influential in the gay communities.

See "And the Band Played On" by Randy Shilts.

The Red Cross *now* asks about conduct. In the past, it did not. In fact, the blood banks themselves were very reluctant to screen on it, even with a Hep B test which was a fairly good proxy for promiscuous homosexual behavior.

Check the book.
5.7.2009 3:11pm
John Moore (mail) (www):

So it is perfectly plausible to argue that in humans, as distinct from the rest of the animal kingdom, the primary purpose of sex is to keep two parents (natural, adopted or one of each) emotionally bound to each other so that they can do the most effective job at providing a family life for the decades of childrearing that each human requires.

I see, and the actual creation of children is merely a secondary effect?

Nonsense.

The primary "purpose" of sex, something which has developed over millions of years of evolution, is to reproduce. The fact that the pleasure mechanism necessary for that also rewards masturbation or sex beyond fertility or homosexual sex appears to have little, if any, species survival value.
5.7.2009 3:17pm
Oren:

The fact that the pleasure mechanism necessary for that also rewards masturbation or sex beyond fertility or homosexual sex appears to have little, if any, species survival value.

You need to watch more nature tapes of monkeys.
5.7.2009 3:18pm
Randy R. (mail):
Yankev: "You keep bringing this down to a matter of likes and dislikes"

Twasn't me. no worries.
5.7.2009 3:27pm
John Moore (mail) (www):

Oren:

The fact that the pleasure mechanism necessary for that also rewards masturbation or sex beyond fertility or homosexual sex appears to have little, if any, species survival value.

You need to watch more nature tapes of monkeys.

You are arguing that monkey masturbation has survival value?
5.7.2009 4:09pm
Bob VB (mail):
The fact that the pleasure mechanism necessary for that also rewards masturbation or sex beyond fertility or homosexual sex appears to have little, if any, species survival value.

Exact opposite actually - our social structure largely depends on our being able to be generally attracted to many other people, who's attractor mechanisms derive in various degrees from our sexual responses. It could be easily proposed that our entire basis for a social civilization derives from our ability to 'want' to be with others of our own kind. And that our males have varying degrees of male attraction could be part of the foundation for the almost unprecedented level of male-male cooperation that allowed this civilization to develop at all.

That you are assuming sexual attraction between the same genders hasn't and can't have any species survival value says more about you than the actual situation you are commenting on.
5.7.2009 4:31pm
Shep (mail):
Apologies if someone has posed this question already but: are these exemptions reciprocal? Can a person who is a member of a same-sex marriage and who, say, owns a flower shop, refuse as customers all people who belong to religious organizations that refuse to recognize his union? All those members of said religious organization who personally avail themselves of their religious exemption and refuse to serve members of SSMs?

If they are not permitted such reciprocal exemption, should they be, in fairness and justice? And if they should, does this serve to illustrate problems with this narrow-exemption construct?

If the narrow-exemption construct is problematic, isn't the appropriate move to allow all individuals full freedom of association (or non-association) in all contexts, including commercial contexts?
5.7.2009 4:37pm
Danny (mail):
So from this article and comments I guess I can confirm:
- There is no legal conflict between SSM laws and religious freedom. It's all chicken little. But, there is potential for conflict between anti-discrimination laws in the providing of goods and services and religious freedom, a separate issue that hasn't been addressed thoroughly
- People seem only interested in discussing these conflicts with regard to gays, instead of establishing a general legal cutoff about what goods/services all Americans can decline to offer to other Americans for religious reasons, or discussing satisfaction/dissatisfaction with the current cutoff.
5.7.2009 4:41pm
Chimaxx (mail):
But if masturbation has no survival value, why would it exist? What is the evolutionary value of masturbation, which is found in a wide variety of species and most mammals?

To go back to the point of the original poster that led us down this fruitless path, when you say:

What I mean by natural is: in conformity with the ordinary course of nature; not unusual or exceptional.


Are you equating homosexuality with unnatural, exceptional things like the inability to curl your tongue into a tube (~15% of people), green eyes (estimated at 10%--the exact percentage is hard to pin down, but no one disputes that it is a minority) or naturally blond hair (estimated at 2%--same qualification).

If you refer to such traits unnatural, as well, then I guess there's not much to disagree about. Do you consider all people who have such traits unnatural? is this true for some traits but not others? none?
5.7.2009 4:44pm
Danny (mail):
I would like to add that in Europe, five countries already have SSM and more have its equivalent. But the EU is only now just beginning to contemplate a directive banning discrimination in the provision of goods and services. That means that in some European countries there may be SSM, but it is still legal for a hotel owner to turn away a gay couple, or a photographer to refuse to photograph a wedding, or any other service provider, or rent an apartment to a gay person, for any reason, religious or not.
5.7.2009 4:47pm
Oren:


You are arguing that monkey masturbation has survival value?


It's hard to fathom the contrary position when masturbation (and same-sex relations, FGM, the whole shebang) are so universal in the primate kingdom. The presumption here is that behavior seen everywhere cannot be an accident of evolution -- those would be limited in geographic scope and certainly limited to a handful of species.

At the very minimum, you have to concede that deviate sexual behavior in monkeys cannot possibly be selected against, again, given the universality of the behavior.
5.7.2009 4:52pm
Oren:
s/FGM/FGR/g
5.7.2009 4:54pm
Danny (mail):
@ Climaxx
So the most unnatural person on earth would be a left-handed naturally blond homosexual with green eyes, who cannot curl his/her tongue into a tube? We need someone like that for the Supreme Court.
5.7.2009 4:56pm
Yankev (mail):

You need to watch more nature tapes of monkeys.
So this is about encouraging people to act like animals?
5.7.2009 4:56pm
John Moore (mail) (www):

you have to concede that deviate sexual behavior in monkeys cannot possibly be selected against, again, given the universality of the behavior.

Probably true, or at the most, weakly selected against.

As for it not being an accident, I sort of disagree. It does not have to be selected for - it can be a byproduct of others things of strong selection value: hands and a a pleasure producing sexual organ. The selection value of reproductive sex is so incredibly strong that it necessitates a set of behavioral traits oriented in that direction, which not surprising have common side effects such as non-reproductive sexual pleasure-seeking behavior, whether in ducks or monkeys or humans.
5.7.2009 5:00pm
Chimaxx (mail):
No, it's about not people from behavior that humans, monkeys and numerous other species share using the specious argument that such behavior is unnatural. If it were unnatural, it would not be so widely selected for in nature.
5.7.2009 5:01pm
Chimaxx (mail):
And on what objective basis do we determine which traits are "purposive" and which are side-effects?
5.7.2009 5:03pm
Yankev (mail):

At least a few have said that food that meets the requirements is kosher regardless of what is said about them.
First, as you pointed out, you changed the question from the proposition that you posted earlier. Second, I would be greatly surprised if any of them told you it was okay to eat meat if there was a significant break in the reliable chain of custody from the time it was slaughtered to the time it was served. I agree that what constitutes "reliable" varies with the circumstances. Where we disagree is this. Orthodox Judasim does not allow a person to set his own standards as to what evidence is deemed reliable, but expects him to follow the standards of reliability established by rabbinic process, to consult a rabbi in the event of doubt, and to follow the ruling given by that rabbi.

But all this is getting way OT. The point is that regardless of what people who do not keep kosher think they know, the lack of a religious exemption for business owners can put a kosher caterer in an untenable position.
5.7.2009 5:06pm
Bob VB (mail):
What I mean by natural is: in conformity with the ordinary course of nature; not unusual or exceptional.

If thats the criteria then

masturbation >> sexual intercourse >> procreative sexual intercourse

So the most unnatural activity is breeding. Gotta love it when you get them talking.
5.7.2009 5:17pm
Chimaxx (mail):
But all this is getting way OT. The point is that regardless of what people who do not keep kosher think they know, the lack of a religious exemption for business owners can put a kosher caterer in an untenable position.


Actually it doesn't explain why a specific religious exemption for same-sex marriage is needed. Why wouldn't religious exemption protections that already exist in the case of intermarriage or the remarriage of a divorced woman who did not have a religious divorce suffice? Why should a business have more protection with regard to same-sex marriage than it does for these other situations? Why can't they be protected under the same law?
5.7.2009 5:17pm
Danny (mail):
@ Yankev
So to resolve this untenable situation, we should add a religious exemption not in the SSM law, but into the existing law that covers non-discrimination in the provision of goods and services, correct?
5.7.2009 5:21pm
Yankev (mail):

Why wouldn't religious exemption protections that already exist in the case of intermarriage or the remarriage of a divorced woman who did not have a religious divorce suffice? Why should a business have more protection with regard to same-sex marriage than it does for these other situations? Why can't they be protected under the same law?
I am not aware of any law that would currently penalize a caterer for turning down these events, but I agree that if there is, there needs to be an exemption. Or as Danny observed, and I agree:

So to resolve this untenable situation, we should add a religious exemption not in the SSM law, but into the existing law that covers non-discrimination in the provision of goods and services
The problem is not unique to same sex couples, but to date there has been no movement on the part of intermarrying couples to penalize those who do not want to facilitate their ceremony, and the same is true for women remarrying without a divorce. As a practical matter, few people who keep kosher would be likely to attend either even anyway. Same sex couples is simply a more likely ground for confrontation, as witness the tenor of some of the comments from a minority of the SSM supporters on this and related threads.
5.7.2009 5:41pm
Danny (mail):
@ Yankev
But the confrontation can happen legally whether the SSM is legally valid or not. It doesn't matter whether there is SSM, right?
5.7.2009 5:45pm
cathyf:
So this is about encouraging people to act like animals?
No, you are the one who is arguing that natural law means that people are little different from animals. There is no species of animal which will adopt a child and then 50 years later be investing large amounts of care in their great-grandchildren. With humans, it happens all of the time. Conception may be necessary but it is far from sufficient for successful reproduction. Because of the unique nature of human reproduction, homosexual relationships can actually contribute to the survival of offspring. Given that, up until so recently as to be irrelevant on an evolutionary time scale, virtually every adoptive parent was pretty closely related to the adoptee, the mechanisms of natural selection could well select in favor of adoption by homosexual couples.
5.7.2009 6:09pm
John Moore (mail) (www):

And on what objective basis do we determine which traits are "purposive" and which are side-effects?

Natural selection value - the degree to which the traits effect species selection advantage/disadvantage (obviously somewhat speculative, but biology always is)

Purposive, as has been stated before, is really shorthand a beneficial evolutionary trait.
5.7.2009 6:33pm
John Moore (mail) (www):

masturbation >> sexual intercourse >> procreative sexual intercourse

Your kitty cat would disagree.
5.7.2009 6:34pm
Bob VB (mail):
masturbation >> sexual intercourse >> procreative sexual intercourse
Your kitty cat would disagree.


Yes it would, that's why it goes into estrus - that humans are sexual active regardless of procreative potential probably makes some significant differences doesn't it?
5.7.2009 6:55pm
Danny (mail):
Why are we going on and on about evolution and biology? We are citizens of a republic with laws. We are trying to decide public policy on a specific issue. An issue which apparently has nothing to do with SSM.
5.7.2009 7:23pm
Bob VB (mail):
Why are we going on and on about evolution and biology?
Because law derives from the real world, it is a mere mental construct. Have you experienced those that say 'everyone can marry: just only those of the opposite sex?" If marriage were merely a legal construct that would actually be a valid line of reasoning, and if it is merely the law any change could be used to justify the other 'slippery slope' changes that are brought up

By showing that marriage is a natural human condition, and that people of both genders marry those of either gender by the exact same biological mechanisms, it provides a reason why the law should reflect reality and give all citizens the same rights that others already have acknowledged. It makes our right to marry innate and universal and provides the base for the legal arguments to rest upon.

Though the discussions do seem to go on and on.
5.7.2009 7:51pm
Danny (mail):
I couldn't disagree more, BobVB. We don't write American laws because they fit with evolution or evolutionary psychology. We write laws because they are practical solutions to real-life problems. If people are stealing things, we don't sit and debate whether stealing is natural and why it might have evolved. We refrigerate food and give medicare to the elderly, because these things are ethical, not because they are natural or exist in the animal kingdom.

This debate is about gay couples, who are living breathing people in 2009, and about religious people who offer services. We need to make a public policy decision. Talking about cats masturbating is a distraction.
5.7.2009 8:01pm
Yankev (mail):
Danny,

But the confrontation can happen legally whether the SSM is legally valid or not. It doesn't matter whether there is SSM, right?
Right, it can occur whether or not there is SSM.
5.7.2009 8:57pm
Yankev (mail):

No, you are the one who is arguing that natural law means that people are little different from animals.
Where did I do that? I simply asked a single, one sentence question. You may have me confused with some of the people who were carrying on the discussion of what is and is not natural.

My entire point is that humans are not like animals because humans can make choices and do not simply react to stimuli. But I agree with Danny that the entire topic has little to do with whether SSM is a good idea or a bad idea, and whether or not religious exemptions are a good idea or a bad idea.
5.7.2009 9:03pm
Danny (mail):
I'm re-posting what I wrote in the other thread because it's confusing to have multiple threads with the same topics.

Should religion be an acceptable reason not to provide any service that would normally be open to the public? And if so, which services? Instinctively, it seems right that we would not allow an emergency-room doctor to deny life-saving medical care to someone for religious reasons. But it seems naturally right that we would allow a Kosher-certified catering company to decline to help organize a celebration that would cause them to lose their certification if they attended. If these are the two extreme situations, one clearly wrong and one clearly OK, then what is the cutoff point? What about the Christian wedding photographer who won't photograph the Mormon wedding? Or the Muslim who won't take blind people with seeing eye dogs in his taxi. Currently these people can't refuse, apparently, so they are saying that our current anti-discrimination laws are too strict. Should there be a list of services or professions that are exempt from anti-discrimination laws? Taxis? All photography? What about a clerk who takes passport photos at a Walmart?

Should the US be like some European countries where there are NO anti-discrimination laws in providing services? (Until recently in Italy, it was totally OK for a landlord to tell a tenant, "I only rent to people from countries A, B, C") Should we be like that? Europe is moving away from that. I guess we would want to allow a religious-based exemption rather than just an ideology- or personal preference-based exemption. For which professions? Do athiests get exemptions to decline to photograph and cater to religious events? There are a lot of questions to resolve.
5.7.2009 9:10pm
Bob VB (mail):
We don't write American laws because they fit with evolution or evolutionary psychology
Pity, because law not based on reality is just another kind of masturbation.

We write laws because they are practical solutions to real-life problems. If people are stealing things, we don't sit and debate whether stealing is natural and why it might have evolved.
Interesting that you pick a negative example. This is about people wanting to have the same right to express a natural impulse that other citizens already have and have the same governmental support. How can you acknowledge the right to marry as a fundamental right and ignore its origins? By doing so you open the door to blithe claims that the right to marry someone is somehow totally different merely because of the gender of the spouse.

Everyone's right to marry comes from our biology - if we didn't naturally want to do it we would even be talking about it. Ignoring a condition's origins makes arriving at the right solution pretty haphazard.

Our natural rights usually don't even need to be pointed out - we have an innate right to breath, to eat, to sleep, and yes to marry. It is because some would deny this basic human right that it is essential to go back and establish that it is a natural right, one citizens possess no matter what gender their spouse may be.
5.7.2009 9:58pm
Danny (mail):
@ BobVB
Yes, I believe in natural rights. The US declaration of Independence says we are "endowed by our Creator" with these rights. The Italian constitution says we have "unviolable rights" which are "connected with the mere quality of being human". The Universal Declaration of Human Rights lists the right to marry and found a family as one of the natural rights of man.

Are they from our Creator? I don't know if I can commit to that. Are they from biology? Who's to say? Why are we debating where natural rights come from instead of talking about where religious freedom and anti-discrimination laws collide?
5.7.2009 10:12pm
Chimaxx (mail):
Like John D, I, too, was appalled by Prof. Robin Wilson's mendacious use of the Ocean Grove Camp Meeting Association case

In New Jersey, authorities yanked the property tax exemption of a church group that denied requests by two lesbian couples to use the group's boardwalk pavilion for their commitment ceremonies.


The exemption that was "yanked" was not the Ocean Grove Camp Meeting Association's tax exemption as a religious organization. That was never in peril, never challenged, and never at issue. It was a special tax exemption for the boardwalk pavilion that was conditioned on both of this facility being offered for public use according to the laws of New Jersey.

When they prohibited the lesbian first couple's commitment ceremony, it was clear that they were not offering the pavilion to the public on an equal basis, as required by New Jersey law for the special public use property tax exemption they were receiving.

Arguing that they should still receive this special tax exemption even though they were unwilling to fulfill its qualifications is like arguing that a church that gets a special watershed exemption for keeping part of their parking lot unpaved should continue to get that exemption even after they decide to pave that portion of the lot because their membership has grown. Whether that hypothetical church argues that their religious belief requires that man have dominion over nature should have no effect on the outcome.
5.7.2009 10:32pm
Bob VB (mail):
Are they from our Creator? I don't know if I can commit to that.
Shoot even I can, the Deist Creator, nature's god, made the universe and has had nothing to do with it since the moment of its creation. Our biology is the testament of that creation.

I see debating the origins is important because some claim their religious freedom comes from another kind of universal creator so the claims of the other side have to establish as firm a ground since so many with religion are not so concerned with others freedoms.

As far as religious freedom and marriage equality, it really is an incremental change as you've noted before - the real issue is civil rights legislation which is behind all the example cases that have been presented. The slight addition of a type of sexual orientation protection is dwarfed by the concept of sexual orientation protection at all.

(totally meta: if physicists are correct and we will someday be able to create our own universes then that means its more likely a sentient creator created ours:

If we can learn to create universes, presumptively we would eventually learn how to create ones biased to physical laws that promote life. If that's what we would do then its likely that's what others would do, and if they did - well considering the odds of a universe just spontaneously having the life parameters the odds would be that any universe that can support life was spawned by a universe that did support life.

Of course that makes the Creator some geek with a pocket protector, but still a 'thanks for the universe' is in order at the very least)
5.7.2009 10:38pm
pluribus:
Yankev:

My entire point is that humans are not like animals. . . .

I guess somebody has to break it to you. Human beings ARE animals.
5.8.2009 10:08am
Oren:



You need to watch more nature tapes of monkeys.



So this is about encouraging people to act like animals?

Please don't take statements out of context. JM and I were debating about the facts of the natural world. Neither of us made any normative claims that "X is natural therefore it is good" or "X is natural, therefore it is bad".
5.8.2009 10:16am
Oren:

Orthodox Judasim does not allow a person to set his own standards as to what evidence is deemed reliable, but expects him to follow the standards of reliability established by rabbinic process, to consult a rabbi in the event of doubt, and to follow the ruling given by that rabbi.

No disagreement, but you've skirted the issue of whether the rabbinic process is a requirement itself or whether (as I assert) it is merely a means by which we can be assured that the substantive requirements are made.


But all this is getting way OT. The point is that regardless of what people who do not keep kosher think they know, the lack of a religious exemption for business owners can put a kosher caterer in an untenable position.

That was never under dispute.
5.8.2009 10:20am
Yankev (mail):

(totally meta: if physicists are correct and we will someday be able to create our own universes then that means its more likely a sentient creator created ours:
Doesn't the LDS church believe that after death the righteous will indeed be able to create their own universes?
5.8.2009 11:01am
Yankev (mail):

I guess somebody has to break it to you. Human beings ARE animals.
I guess somebody has to break it to you. Human beings have innate qualities and abilities that other animals do not, including the ability to choose the long-term benefit over short term pleasure, the altruistic over the selfish, the responsible over the thoughtless, the prudent over the foolish, and the moral over the immoral.

When we say that someone is acting like an animal, we do not mean that he inhales oxygen and exhales carbon dioxide. We mean that he is ignoring his responsibility to make these choices.

This is one reason why those of us who are not PETA members choose to value human life over the lives of (other species of) animals.
5.8.2009 11:09am
Bob VB (mail):
[b]Doesn't the LDS church believe that after death the righteous will indeed be able to create their own universes?[/b]
Don't know but that's the problem - a universe is a self-contained bubble - they speculate you can make one but you can't be inside the one you make, you'd still be inside this one, like the Deist Creator - creation, no internal interference after that. Making your own universe and then living in it - that sounds more like a Matrix situation.
5.8.2009 12:31pm
Chimaxx (mail):
Yankev:

I hate to break it to you, but every species of animal has innate qualities and abilities that other species do not. Humans have the ability to understand and manipulate the concepts like long-term benefit and short-term pleasure. The cheetah can travel over land under its own power faster than any other. The cockroach can breed so quickly and prolifically and survive and thrive in such a variety of adverse conditions that many claim it will outlive humanity and most other creatures.

The point is that the "specialness" of humanity is a lot like President Obama's reply to the question about American exceptionalism: "I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism." We believe we are exceptional because we are human (and because, as humans, our particular innate qualities give us the ability to come up with concepts like exceptionalism). But every species has characteristics that make it exceptional in its niche, if not planet-wide.

Sure, we can come up with the concept of a high-powered rifle and actually build it, unlike the cheetah, but unarmed, I wouldn't want to challenge a hungry cheetah to a race.

Only on your last point do I agree with you: I value human life over the lives of other species of animals. But that's only because I am one, and I don't delude myself that it's anything more noble than that.
5.8.2009 12:40pm
Yankev (mail):

I hate to break it to you, but every species of animal has innate qualities and abilities that other species do not.
Duh.


Humans have the ability to understand and manipulate the concepts like long-term benefit and short-term pleasure. The cheetah can travel over land under its own power faster than any other. The cockroach can breed so quickly and prolifically and survive and thrive in such a variety of adverse conditions that many claim it will outlive humanity and most other creatures.
Your argument will be convincing to anyone who sees no qualitative difference between moral qualities and physical qualities, or for that matter between intellectual qualities and physical qualities. Those are the very people who are meant when we say that someone behaves like an animal.
5.8.2009 2:13pm
Danny (mail):
Is this what lawyers do? Someone presents a case and they debate about cockroaches, evolution and Deism?

What about the Christian pharmacist who won't dispense the morning after pill?
What about the Muslim who won't take seeing eye dogs in his taxi?
What about the Christian lady who won't photograph the Mormon wedding?

Which ones should be exempt?
5.8.2009 2:50pm
Bob VB (mail):
If everyone has a right to their own beliefs and customers have a right to buy from a business: none of them

If everyone has a right to pretend that the world shares their beliefs including their customers: all of them

Pick one.
5.8.2009 3:34pm
pluribus:
Yankev:

My entire point is that humans are not like animals. . . .

Pluribus:

I guess somebody has to break it to you. Human beings ARE animals.

Yankev:

I guess somebody has to break it to you. Human beings have innate qualities and abilities that other animals do not[emphasis added].

Sneaky, Yankev. If you meant other animals why didn't you say other animals in the first place? If you can't say what you mean, and don't mean what you say, your arguments aren't very persuasive.
5.8.2009 4:18pm

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