Ben Smith at Politico has posted a report about the amendments to the New England gay marriage laws that exempt clergy and religious organizations from having to participate in same sex marriages. Are these amendments constitutional? And would it be constitutional for the states to extend the range of those amendments to apply to private parties?
The Connecticut same-sex marriage law exempts religiously affiliated organizations from nondiscrimination suits if they refuse to perform services or provide accommodations for wedding celebrations in connection with marriages that conflict with their beliefs. The exemptions contained in the laws of the other states are more limited, essentially providing that clergy may not be forced to perform same-sex marriages. In my opinion, these exemptions are redundant – both churches and clergy are already protected under the First Amendment from having to participate in marriages or any other sacraments against their will. There is no harm in codifying these constitutional rights in statutes – there is instead the benefit that persons who are opposed to same sex marriage will be reassured that their ministers, congregations, and churches will not be required to allow the practice in their midst.
Some persons opposed to same sex marriage do not believe that these exemptions go far enough. Ben states:
advocates would like to extend [these laws] to protect private contractors – florists, bakers, and bands – from being sued for discrimination if they refuse to serve same-sex couples
While the government cannot force religious institutions and members of the clergy to perform religious services, and while expressive associations cannot be forced to admit people to membership where their membership or participation in the actions of the association would interfere with the message that the organization is seeking to communicate, a private business which is open to the public does not have a constitutional right to refuse to serve patrons simply because the owners or employees of the business disapprove of those patrons for religious reasons. To the contrary, both federal and state law prohibit private businesses from discriminating against members of the public based upon religion.
In addition to florists, bakers, and bands, there may be other businesses which might choose to discriminate against gay and lesbian couples. Some employers, for example, might wish not to extend health insurance benefits to the spouses of gay employees, and some landlords might choose not to rent houses or apartments to gay and lesbian couples. This raises a very difficult question of constitutional law. Is it constitutional for the state to enact a statute that explicitly exempt certain private parties from the operation of the nondiscrimination laws?
In a "state of nature" before any nondiscrimination laws are adopted individuals and private organizations have no legal duty to refrain from discriminating on any basis whatsoever. If the civil rights laws were repealed tomorrow, for example, employers could resume discriminating on the basis of race, gender, religion, and disability, and the persons who were discriminated against would have no remedy under the law – the statutes which formerly protected them from discrimination would no longer exist, and the Constitution is not applicable against private parties.
However, we might have a different situation if the government were to adopt a law specifically providing that employers or landlords or businesses in general have the right to discriminate on the basis of race, religion, gender, disability, or sexual orientation. In that situtation the courts might find that the government was not simply allowing discrimination to occur, but was actively encouraging or facilitating discrimination. In other words, so long as the state remains "neutral" with respect to discrimination it is constitutional for discrimination to occur among private individuals and organizations, but if the government maintains or supports such discrimination then the government action is in violation of the Constitution.
The closest case to this situation that I am aware of is Reitman v. Mulkey, decided by the Supreme Court in 1967. In that case the people of the State of California adopted an amendment to the California Constitution that did two things: (1) The Amendment repealed a fair housing law (a law that prohibited racial discrimination in the sale or rental of real estate); and (2) The amendment prohibited the California legislature from adopting another fair housing law. The Court ruled that it was constitutional for the people, acting by way of referendum, to have repealed the fair housing law, but the Court said that by preventing the future adoption of fair housing laws by the legislature the amendment "authorized" and "encouraged" acts of private discrimination in the housing market, and therefore "significantly involved" the state in those acts of discrimination. Accordingly, the Court held that the second part of the amendment to the state constitution was in violation of the Equal Protection Clause.
The proposed laws exempting private businesses from having to serve same sex couples on a nondiscriminatory basis clearly "authorize" and "encourage" acts of private discrimination. On the other hand, these exemptions could be characterized as simply returning the law to where it was before the same sex marriage laws were adopted – that gay and lesbian couples could not enter into a valid marriage. It is possible that the constitutionality of these exemptions would turn upon the question whether same sex couples have a constitutional right to be treated the same as heterosexual couples with respect to marriage (as in Massachusetts), or whether this is a privilege granted by statute (as in Vermont). If same sex marriage is a constitutional right then the courts might rule that the legislature may not limit the operation of that right by exempting private parties from having to extend equal treatment to gay and lesbian couples.
Finally, the Supreme Court might decide that the a law exempting private businesses from having to recognize the validity of same sex marriages was invalid because its very purpose was unconstitutional. In Romer v. Evans the Court ruled that it was unconstitutional for the state of Colorado to adopt a constitutional amendment (Amendment 2) which prevented the state legislature from adopting laws prohibiting discrimination in housing, employment, education, or health care on the basis of sexual orientation. The Court ruled that the state's proferred jusficication for the law – protecting the liberty of other citizens not to associate with gays and lesbians – was not a sufficient reason to justify the sweeping nature of the state constitutional amendment. The Court stated:
A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." …
The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ."
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
In summary, there is no doubt about the constitutionality of the exemptions which have already been adopted or proposed in the New England states exempting clergy and religious institutions from having to administer the sacrament of marriage to same sex couples or provide accommodations for same sex wedding ceremonies. These laws are constitutional because they protect the Free Exercise rights of religious institutions. But whether the law could go further in exempting private businesses from having to serve or recognize same sex marriages is a tough question.
{ 16 comments… read them below or add one }
"If the civil rights laws were repealed tomorrow, for example, employers could resume discriminating on the basis of race, gender, religion, and disability, and the persons who were discriminated against would have no remedy under the law…"
This is true.
The main point which is missing in this blog is that gay rights have nothing to do with civil rights.
I believe that most people don't care what one person does consensually with another sexually. Just keep it in the bedroom.
A similar situation would be if a lesbian sat on a park bench, pulled-down her panties, and encouraged her dog to lick her crotch. Such activities should be kept out of the public's view, as it is generally considered unacceptable public behavior, much as heterosexual, lesbianism and gay public activity is generally considered unacceptable public behavior.
If that lesbian who practices bestiality would then walk across the lawn into my place of business, I would probably refuse to serve her. Not on religious grounds, but based upon the "disgust" factor and the knowledge that this person does not practice respect for our laws. She exhibits signs of being a loose cannon and may well engage in other activities in my place of business which are generally considered to be unacceptable, such as thievery, public urination or defecation, and so on. I, as a business owner, have a right to defend my business by refusing service to this person. "No shirt, no shoes, no sense, no service."
Of course, she may one day decide to go to the media in an attempt to marry her dog, giving them all the rights and privileges of marriage. She may want her dog to be covered under her employer's health plan. She may want her dog to visit her in the hospital one day.
She may even claim that her and her dog's civil rights are being violated. But don't ever expect me to support marriage in this case. It's a drain on the insurance system – I do not wish to pay higher premiums due to such ridiculous attempts at bilking the system. If your dog MUST visit you in the hospital, then just execute an appropriate Power of Attorney for your dog – issue resolved.
It is degrading to the Nth degree to suggest that gay/lesbian rights are a matter of civil rights; as, say, the rights of African-Americans. Apples and oranges. Civil rights apply to the concept of discrimination based upon factors which one is born with, or handicaps encountered. Skin color. Male or female. Physical handicaps. Civil rights do not apply to those who choose to engage in an activity. If I am an outspoken critic of the NRA, I would not be a crybaby and claim that the NRA is violating my civil rights by not allowing me to be a member of their board of directors.
They may win the battle but they are losing the battle for respect and cocnern of many of us. I am a 60 year olf man who has never given a damn if a person happens to be gay and have always supported equal rights for gays as well as all people. However I am now being attcked as a bigot etc. because I have no interest in embracing or celebrating their life style. Why in the hell do I have to validate their life style? It is not necessary to validate others life style nor do I require otheres to approve of me.
Interesting.
I think the real problem here is that neither of the previous comments actually understand what the gay marriage fight is about. Marriage is not a sacred institution between two heterosexual people ordained by God. Marriage, under the law, is a legal contract which confers a series of incredible benefits upon the recipients. These benefits are tangible and valuable and are not analogous to "raping dogs" or the NRA. And further, to assert ones civil rights is not being a "cry baby", it is an appropriate and necessary part of living in a nation of laws.
When the State, via the law, treats groups of people differently it must have a legitimate reason for doing so. In this case, we have two groups of people being treated differently by the State under the law. Homosexuals, who are human beings and American citizens are being denied a substantial benefit that is being offered to heterosexuals.
So, in regards to civil rights it is directly analogous to the struggle of African Americans. How is this any different from not allowing two black people to marry or from prohibiting a white person from marrying a black person? In both of those cases, which used to be illegal, the State was conferring a benefit onto one group and not another based on racism and bigotry. Of course, the big difference is, discriminating against blacks is no longer considered "acceptable behavior". However, you do not have to look back too far in this country to see many civil rights atrocities which have fallen out of favor in our modern "enlightened" and "politically correct" age.
Gay is the new black. In 25 years, all of this will be a settled issue and our children will accept homosexual marriage as a legal civil right under the law. It will seem weird to them why our generation fought so hard not to allow a discriminated people equal access to insurance coverage, hospitals rights and death benefits. They will find it odd that the same generations that fought racism and the holocaust and established the ADA would bend over backwards to stop a very small group of people from equal representation.
The law is not a tool that should be used by the majority (heterosexuals) against the minority (homosexuals) to assert our "better" version of society. The LAW is supposed to represent a better version of ourselves. A version in which all people, no matter how different, can find equality.
In the simplest terms, Gay marriage is a fight for civil rights because the law is treating two groups differently without a valid reason.
I have to address the ELEPHANT in the room. The one reason often used is of course, religion. As if marriage was made by god and given to man for safekeeping. And as an aside, if that is the etymology marriage, what a great job we have done in this country of honoring it. The divorce rate is 50% and in those religious groups that don't divorce adultery and unhappiness are endemic. Not to mention other countries and cultures who force marriage on their children for money, food, respect or alliance.
We can even look to the bible, a favorite source, and find many example of sins against marriage. Such revered names as: Abraham, Jacob, David, and Solomon had many wives and concubines to satisfy their needs. But, that was OK then. This is in the same Testament that condemns homosexuality. Where now polygamy and bigamy are illegal in every State.
And of course, the response can be that that was the Old Testament and it is different now. I absolutely agree. It is different now, we live in a nation of Laws, not of men.
Now, at the risk of digression I would like to discuss a second religious issue regarding Gay marriage. In the New Testament, where modern Christians derive there faith several things are clear. Jesus is not the vengeful God of Abraham and God loves all men, even the worst sinners. Jesus, whom we base all Protestant faith, never condemned homosexuality. If fact, He went out of his was to embrace, the whores and lepers of the world. The Beatitudes could not be more clear on what is of value in the eyes of the Lord.
"Blessed are the merciful, for they shall obtain mercy." (Gospel of St. Matthew 5:3-10)
Jesus was never concerned about who was "sinning" because he died for all sin. However, Jesus was clear about what he thought about Law of his time. As we all know, Jesus was a Jew and he was raised within that faith.
The Hebrew testament forbids homogenitality for purity reasons, male-male sex makes one unclean because it breaks a religious taboo, it associates one with the Canaanites. The Hebrew scriptures also list other purity requirements, like washing at prescribed times or not eating certain foods.. example: circumcision made a person a Jew and qualified them, but no one thought that God rejected the uncircumcised. The purity requirements of the Jewish law were part of being a Jew, they were not necessarily part of being a good person, just and righteous before God.
Jesus was clear that being a good person and keeping the requirements of the Jewish law were not the same things, one of the reasons that he was killed was that he challenged the real importance of the law.
"It is not what goes into the mouth that defiles a person, but it is what comes out of the mouth that defiles… what comes out of the mouth proceeds from the heart, and this is what defiles, for out of the heart comes evil intentions, murder, adultery, fornication, theft, false witness, slander; these are what defile a person, but to eat with unwashed hands does not defile." (Matthew 15:10, 18-20)
The only purity that mattered to Jesus was purity of heart. Jesus objected to eternal religious show fasting so others can see, praying in front of everybody, putting a lot of money into the collection so others will notice. "People honor me with their lips, but their hearts are far from me." (Mark 7:6)
Jesus is not impressed with externals, He looks into the heart. "For in Christ Jesus neither circumcision nor un-circumcision counts for anything; they only thing that counts is faith working through love." (Galations 5:6)
And if all of this is true, then it is pretty simple, mind your own sins and leave the pious judgment up to God. He has already told us about the value of unconditional love, yet when it comes to the "oppressed" group of the day, we always forget for awhile. The Bible has not changed for a thousand years and yet, who we hate and how we treat them has adjusted according to our fears.
To bring this argument full circle. If religion is the source of marriage, then we should be tolerant, if law is the source of marriage then we should treat everyone with equality. Either way, this is a "civil" issue and if everyone takes a few minutes, alone, when no one else is looking, without the pressure of social groups, or churches, or politics and thinks "why am i against this?", I think the answer is clear. Unless you hate homosexuals and want to see them oppressed, you should stand aside and strive for equality. Allow our law to be a representation of our better selves and not a withered fracture of our prejudices.
To quote Emerson:
"Do not follow where the path may lead. Go, instead, where there is no path and leave a trail." Ralph Waldo Emerson
In the interest of full disclosure I am a militant Atheist.
Noah
Why is polygamy illegal? I've never heard anyone give an answer that makes any sense.
Why would anyone be a 'militant' atheist, and how is that better than being a 'militant' Christian or 'militant' Muslim?
Wrong, Franco–the right to marry the person of your choosing IS a civil right. The government confers 1100 rights and privileges on married persons, including inheritance, hospital visitation, favorable tax treatment, etc.
Good post Noah. I am not an atheist, but I believe that God wants gay people to have healthy, nurturing and hopefully committed relationships.
I wonder how much hiking Emerson did. It was probably pretty good advice if you're a prison escapee trying to escape an armed posse, but if you try it a couple times (going where there is no path) you'll be scratched, scraped, bitten, stung, filthy, buggy, possibly injured, and your reward for all this just mmight be the tiny bit of wisdom that paths are where they are for a reason. In the modern world it sounds like the advice that a drug peddler might give your teenage daughter.
If you're such a militant atheist why would you cite Jesus so heavily?
Marriage is at the very least a contract and to some people it is much more. The main reason for holding such a contract void if between the same sex would be that it is for an illegal purpose. If homosexual acts may not be outlawed, then it seems to follow that gays may enter into such contracts. The state would seem to have no interest in such a contract in general because children are not likely to arise from it.
My view has come to be that all laws and social and religious rules of behavior are or were oriiginally pragmatic in nature. I believe that rules governing marriage and regulating divorce and separation are ostensibly to preserve a modicum of order in society. I believe children of one parent families are a little more likely to end up in trouble with the law, less likely to do well in school or career etc. There may be economic factors that favor monogamy. In any polygamous system I've ever heard anything about, the major choices seem always to be a male prerogative. If you hold to the concept of women as chattels there probably isn't any difference between mono-and poly-gamy
Some would argue that up until 50 years or so ago the major choices in any monogamous marriage would always be to a male prerogative as well. I'd think it's much easier to dominate or enslave a single woman than a group of five or six of them. I also believe it's just as illegal for one woman to have six husbands.
Your logic sounds good; if I had four wives I think I would be thoroughly hen pecked, but I think it breaks down in practice. There is a recent case where an eight -year-old was sold into marriage by her father in Arabia for about 13K. The case is notable because she managed to get a lawyer and get herself a divorce (possibly in Egypt?) There must have been some subversives hanging around for her to get a lawyer. I believe that in connection with the case the head Cleric in Saudi spoke out vehemently in favor of such early marriages. Mohammed took a bride under ten, so why would they object?
The thing is women generally have zero rights in some of these countries. A man can divorce a wife just by telling her so in front of witnesses. A divorced wife has little if any status in the world. It's not like she can run down to Crazy Zack's and hook up with somebody. So a guy who dominates one wife around here could probably control a harem in those countries where girls get sold at an early age.
Are there any polyandrous societies? I'm not aware of any.
I believe that Mohammed told his followers to take as many wives (up to four) as they could "deal justly" with or some such phrase. I think he was saying if you can manage that many go for it. I always thought one was the absolute max (maybe a little more) that I could manage, and I think that's probably true of most males.
Several of the foregoing comments illustrate why the Supreme Court has begun to recognize gay rights under the Constitution and why so many people are coming to believe that it is time to enact legislation protecting gays and lesbians from discrimination. Americans believe in equality – that people should not be treated differently simply because of irrational prejudice or unfounded stereotypes. The more that the types of views expressed in some of the comments are brought out into the light, the sooner that they will be rejected.
As for polygamy, I agree with N.E. As a practical matter polygamy seems to always result in child marriage and forced marriage and is characteristic of societies where women have few if any rights. When women are barred from the workplace and are stripped of reproductive freedom – when they are reduced to being the property of men – then wealthier men will attempt to monopolize a number of women. This happens in our society in a number of forms – a pimp managing prostitutes, a wealthy or powerful man supporting one or more mistresses.
The polygamous communes out West mainly live on welfare – no single man can realistically support that many wives and children. Another characteristic of those communes is that they drive away or otherwise dispose of the young men. Teenage boys represent competition for young women, so the old men send them into exile. A similar phenomenon occurs in many Arab countries. Young men are not educated and there are no job opportunities for them in part because of the system of polygamy. Old men prefer a society where young people can never aspire to having families of their own, where young women must content themselves with being part of harem and young men have no role except to serve as cannon fodder or suicide bombers. I exaggerate – but I view polygamy as a fundamentally dysfunctional system. Under the Constitution we can't make it against the law for there to be informal forms of polygamy – where people consensually live together with multiple partners – but I believe that there are enough abuses directly attributable to the practice of polygamy that we do not have to recognize the validity of those relationships or subsidize them through our governmental policies.
Those of us who favor same sex marriage believe profoundly in the importance of marriage and the value of monogamy. For one person to promise to love and honor another person – to devote himself or herself to that person – is the greatest commitment we make in our lives. Polygamous persons like promiscuous persons do not make this commitment. i urge all of you to consider that people who support same sex marriage are, in fact, strong proponents of marriage itself.
I've read of husbands in foreign countries beating or even killing their only wife and getting off scot free because their honor, etc., had been violated in the eyes of that culture. That doesn't mean monogamous marriage should be outlawed in the U.S., does it?
The talk of "the polygamous communes out west" has a tinge of religious bigotry, which is what any discussion about polygamy seems to devolve into. A polygamous marriage does not have to mean the wives don't work, or that young men are denied education. There are other ways the law can protect people, as laws protect those in monogamous marriages.
As far as 'greatest commitment,' people get married for all kinds of reasons and it's no business of the state. Maybe Hollywood celebrities should be barred from marrying?
Regarding Mr. Munyer's thoughtful post…
The Old Testament includes many "laws" that, as he points out, are torn down by Christ's life and death.
Despite that, Romans 1:27 says: "In the same way, their males also abandoned their natural sexual function toward females and burned with lust toward one another. Males committed indecent acts with males, and received within themselves the appropriate penalty for their perversion."
While the Old Testament tore down the "law" as a means for salvation, it retained much of the moral tenets.
I believe that homosexuality is a sin, but I believe it is also a sin to lust, to covet and to do many sexual acts. That's the thing about us humans — we find ways to mess up. Throughout history, part of messing up has included pointing out ways that other people mess up. Being judgmental is certainly a giant sin, as well.
Jesus certainly would befriend homosexuals — as he did with tax collectors, prostitutes, and other "prominent sinners." Many of today's Christians forget that, and prefer to focus on being judgmental.
Christianity does indeed lay a rahter heavy burden on you; often referred to as a cross. Hardly anyone can hoist the whole thing and still be competitive in this world, and one way to get by seems to be to carry what you can and not think too much about what you left by the roadside. Way back when contraception was the hot issue ( with some folks it still is) I knew a catholic woman who said she thought the Church was wrong on that point and so she paid no attention to the ban and didn't bother to confess it.
The part I left behind a long time ago was the part about loving your enemies and turning the other cheek. My reasoning has been that if our ancestors had taken that to heart we either would not be here at all or would be here as Muslims or as slaves. Peaceloving peoples survive if at all as wards or protectorates.
But I do manage to show up a couple Sundays out of the year – well, most years – and would think that other folks with other hangups ought to be welcome too for whatever amount of the load they might be pulling. Maybe Pastors should publish a schedule of sensitive topics and when they will be expounded, so that gays could stay home to avoid hearing about 1st Romans and guys like me could avoid listening to pacifist sermons etc. In any given church you might end up with 52 distinct congregations each of which only shows up one Sunday a year.
P. S.
Mike, I still think Zippy has to go. Never get to the Sugar Bowl with that clown bouncing around on the sidelines.
Bless You.
I, too, am an atheist….have been for 25 years, after having been a minister.
I also find the Professor's posts to be factual and progressive.
That said….I don't find the Professor's arguments against polygamy persuasive. It seems to me that if three people, or more, want to pursue their own happiness through a polygamous union….what interest does the state have in that choice?
"..I believe that there are enough abuses directly attributable to the practice of polygamy that we do not have to recognize the validity of those relationships or subsidize them through our governmental policies."
Opponents of gay marriage say exactly the same thing about gay marriage.
There are plenty of abuses directly attributable to good old fashioned Mom and Pop marriage, too.
But Reverend, are you the same guy who said that a life sentence for a minor is "an abomination"?
I put it to you that if there is no God, then nobody ever admonished Cain that his brother's blood "… crieth, out from the ground", and in fact there is no such thing as an abomination – at least not until the alpha male says there is and then an abomination is whatever the alpha male, e.g. Hitler, Stalin, Mao says it is.
As to the preceding comments questioning the need to regulate marriage at all, having read some of Jane Goodall's accounts of Chimp society and having recently finished watching "the Wire", I would suggest that a breakdown of the family, if not an abomination to God ought surely to be an abomination to the state, which would seem to me to have a legitimate interest in a stable family as a far better incubator for children than street corners. And the Bible is a far better source for the definition of abominations than guys like Marlo.
It looks to me like just about 1/256th of an inch below the surface we are all chimps, and that outermost 1/256th" is our only hope.