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.

Incivil Disobedience

This looks like an interesting and effective scheme.

R.I.P.

Equal Marriage, California

June 17, 2008 - Nov 4, 2008

In hopes of the resurrection

Moral Cowardice and Civil Disobedience

The essentials of Civil Disobedience are threefold; acting from a moral belief, one violates the law, and one accepts the consequences of that violation. Gandhi's presentation of the concept of satyagraha was that moral force itself makes your case. You stand before the judge, you express your moral stand and you force him to either accede to your moral point or to punish you. If punished, you accept it, and you presume that the media and popular opinion will (perhaps not now, but in time) move to correct the injustice. Martin Luther King Jr took the same path... as Henry Thoreau had before Gandhi. This is not new, it's not rocket science. It's not hard in theory, it's only hard to do in practice, because you put your body and liberty on the line.

There are three (I've heard five... but not seen it in print) counties in California where the county clerk has decided to refuse to have the clerk's office perform same sex marriages. Now, that's against the law, and while I disagree with the act, the decision to take that stand is--presumably--a moral stand. Or should be. However, in each case, it turns out that the clerk is a moral coward.

Not one of them is actually making that stand. Instead, they've refused to have any marriages performed by the clerk's office (in those counties). They're still issuing licenses for same sex couples, as required by law. But if their action was a moral statement, then one would expect that they'd simply refuse to issue same sex couples licenses at all. No, all they're doing is refusing to perform any marriages--and thereby they avoid the legal consequences, because they're not in violation of the law. They don't have to perform marriages. They do have to issue licenses, and they do have to not discriminate in the services offered to the public.

(I'd like to reiterate; I disagree with their stance. I'm simply doing the moral calculus here. Personally, I'm delighted that same sex couples in those counties are getting marriage licenses.)

Bottom line? The clerks aren't committing real civil disobedience. They're not acting based on their moral beliefs. They're simply engaged in a gratuitous act that's most analogous to a tantrum. They're not acting in a moral and consistent way, and they're not willing to face the consequences of acting on the basis of their beliefs.

Thin, thin stuff there. Not enough moral force there to light a single candle.

One Wonderful Afternoon (Equal Marriage Support Experience)

Unitarian Universalists in San Diego County (and I suspect throughout California) rallied today to celebrate Equal Marriage being a reality. We gathered at the county administration offices where marriage licenses are issued and marriages performed to support and celebrate those getting licenses today.

I couldn't get there this morning; my wife had a hell of a schedule and I had to take one son to a dentist appointment. I'm told there was a rush at and shortly after 8 am at the San Marcos office. I got there at 1 pm.

There were no protesters. None. There weren't any at any time during the day. There were a couple sheriffs (and cars) there, but they had nothing to do (other than to gently and politely point out that we were blocking one sidewalk at a time when we were with three couples at the same time and in the process sort of spilled out over the whole walk).

It was wonderful. Weather aside (it was marvelous), it was a real delight to be there. Couple after couple came in and they were immensely pleased that folks they didn't even know were there to celebrate with them, had come out to spend the day cheering them on.

The gay couple who'd been together 42 years, and were so happy that they could at last get married, officially.

The lesbian couple in their late 20s, with their twin daughters, utterly delighted with the roses they were handed and the bubbles someone was blowing.

The guys who were part of the local LGBT Alliance leadership and were there for their license, getting a church wedding Sunday (one of three we heard about for that Sunday at that church).

The older ladies who arrived with two daughters (soon followed by granddaughters... one with her young son), who were initially put off. They saw us, didn't read the signs or shirts.. and thought we were protesters there to harass them. They told us that their daughters planned to sort of push through and protect them. You can imagine the rollercoaster of emotions for all of us when they realized we were there to support them and celebrate with them--tears in both their eyes, one daughter's, and both of the UU ministers with us, of relief and joy. They were so happy when they came out of the building.

Any one of those would have been worth standing in the sun for four hours. Each couple so joyful when they had their license (and in some cases, marriage done).

No protesters. Not one. Remember, this is northern San Diego County--the not-long-ago John Bircher underbelly of red Orange County, where dirtballs like Tom Metzger and the (so called) Minutemen were and are a reality. This is the county which, we're told, holds a disproportionate number of those bankrolling the attempt to amend the California Constitution). They didn't muster a single protester.

The sum total of negativity? Two events. One was two guys who walked in dressed pretty similarly (we were actually wondering if they were a couple who were in for a license). As they left, the one was on a cell phone and commented (but not very loudly) "gay marriage is wrong." The other was almost at the end of the day, a single middle-aged woman who asked what the signs were about. When I explained, she asked "And you're supporting that?" When I said "Absolutely," she sort of shook her head and said "You need to repent," and walked away.

We had several people ask questions--people who seemed to be making up their minds about what they thought, and whether this was ok... I just hope that the fact that people were out, happy and pleasant and civil, including clergy, supporting it, made them really consider their votes.

....

But it's not really all joy. Ignoring that there's this absurd ballot measure. One of the ministers told of getting a call yesterday; a chaplain in a hospice where a man was dying. He and his partner of 24 years wanted to get married--legally--while they could. But it wasn't possible. Because the deadline to start, legally, was today (in San Diego, where licenses were only issued starting today--a few counties stayed open late yesterday to take advantage of the 5 pm deadline), that couple likely didn't make it to the altar. The fellow in hospice wasn't expected to live another day.

The delaying of this did that to them. It's wonderful that it's finally here--but it's too damned late for some.

Do what you can to help ensure that the amendment effort fails, or it will be too late for others, too.