How Much Bigotry is Protected?

It has long been the unchallenged right of any clergy member to decline to perform any marriage. There are rabbis who will not perform a marriage between a Jew and a non-Jew. There are significant strictures around the Catholic marriage of a Catholic and a non-Catholic, with the non-Catholic obliged to meet with a priest for an interview and to attend pre-marital classes given by the Church--and that is a significant liberalization of earlier practice. Any member of the clergy may decline to marry individuals who aren't members of their faith (or who are) for essentially any reason.

Religious marriage is not a right. Religious communities are not arms of the state. The only marriage that the state acknowledges are civil marriages. Religious marriage is only accepted where it has been performed lawfully--meaning that the marriage license granted by the state has been duly exercised and signed, and delivered to the state. In other words, where a clergy member has acted as an agent of the state. But the same clergy member could perform a marriage ceremony and--bereft of the license--the state will not accept and acknowledge the wedding as legal. The state merely allows a member of the clergy to perform lawful--civil--marriages.

The clergy person is not a state employee.

The clergy person is providing a religious service. And because of the Constitution's First Amendment, this is a highly protected thing.

As a result, no one can oblige the clergy to perform any particular marriage.

Thus the exemption clause in the law legalizing same sex marriage in New Hampshire was utterly redundant. That's not a big deal, really.

Only some people would like to insist that this exemption should be very broad--and permit religious objection to legally justify acts of bigotry that are not religious in character. This, in fact, is urged by Thomas Berg, in The Christian Century, in an article titled Gay Marriage; A threat to religious liberty? What's most disturbing is that Mr. Berg teaches law.

He suggests that florists and photographers, for example, should be able to refuse to serve same sex couples, because of religious objections to same sex marriage. Presumably this extends to caterers and others... which leads to the obvious question; how is this any different from being able to decline to serve blacks or other groups--so long as one avers a sincere religious belief that to do so is contrary to one's religion? Cry race mixing.... He insists that it's somehow different.

But one can support same-sex marriage and acknowledge that there has been bigotry against gays and lesbians without labeling all traditionalist believers as bigots or equating the discriminatory treatment of gays with America's unique legacy of race discrimination, which includes slavery and a bloody Civil War and led to three landmark constitutional amendments. That history has led us to penalize race discrimination in virtually every context, with few conscience exemptions.

But one can? The justification for enforcing equal legal rights for black Americans is not that they are entitled to them because hundreds of thousands died in that cause in the Civil War. The justification is that every last one of us has the same fundamental and inviolable rights as every other. The only time that the state gets to weigh rights is where rights conflict.

So, what's protected?

Your thoughts are. Your speech is. You can say what you like--unless it falls into that very narrow category of speech that is legitimately seen as endangering someone else (my right to flap my lips isn't as weighty as your right to not be injured or killed). Your right to practice your religion is. Your right to not practice any particular religion, or any religion at all, is also protected.

But one cannot take one's anti-Catholic opinions and refuse to rent to a Catholic, any more than one can take one's bigoted views and refuse to sell a home to a Jew, or refuse to feed a black family in a restaurant because they're black.

But Berg is suggesting that one ought to be able to refuse to serve gays and lesbians getting married, to refuse to do business with them, because one claims that one has religious objections to same sex marriage. Logically, why would this not also oblige and permit those with such religious views to refuse to serve them at all?

But beyond that, why should one be permitted legally to take one's religious views into the marketplace as grounds for refusing to deal with another party? This requires a good--solid--legal justification, and one that is generalizable, not merely homophobic (just as racist justifications were rejected).

Face it, selling flowers is not a religious service. Neither is taking photographs. Nor is providing food.

The First Amendment bars Congress from establishing religion, and from prohibiting the free exercise of religion.

When providing drugs (pharmacy), selling flowers, photographic services, housing and feeding people can be described as a distinctly religious practice, perhaps the Court will need to decide which rights in conflict take precedent. But in the meantime, the notion that there is a religious exemption for non-religious services and providing goods to others is simply nonsense. Wanting to protect one's bigotry doesn't make it constitutional, or legal. And indulging in sophistry to try to suggest it is is shameful.