dotCommonweal

A blog by the magazine's editors and contributors

.

Same-sex marriage and religious liberty, continued

Since the controversy about (and subsequent veto of) Arizona's SB 1062, a pointed debate in newspapers and blogs has ensued about civil rights vs. religious liberty.  Ross Douthat's New York Times column expressed frustration that religious dissenters are not being permitted to "negotiate terms of surrender" in a culture "war."

What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.

But is this best construed as a war, or does a less threatening metaphor suffice? Perhaps we're not fighting an apocalyptic war of religion vs. secularism, but instead tinkering with our delicate balance of Constitutional rights.

In a follow-up post, Douthat implores certain advocates for gay rights who also strongly support religious liberty, such as Andrew Sullivan, to speak more loudly in defense of religious conscience protections.

Meanwhile, Sullivan and Rod Dreher got into an uncharacteristically testy exchange about whether the new status of Christian orthodoxy entails minority status, with dissent that gets "demonized."

What is certain is that public opinion on gay marriage has changed faster than on any other moral issue in the history of public opinion polling. It is no surprise that laws have been hastily proposed and tempers have flared. Things really are changing faster on this issue than even the most ardent supporters (e.g., Sullivan) had envisioned. For this reason, after the Arizona law was vetoed, he wrote:

If we value our freedom as gay people in living our lives the way we wish, we should defend that same freedom to sincere religious believers and also, yes, to bigots and haters. You do not conquer intolerance with intolerance. As a gay Christian, I’m particularly horrified by the attempt to force anyone to do anything they really feel violates their conscience, sense of self, or even just comfort. ... We’re living in a time of drastic change with respect to homosexuality. It is perfectly understandable that many traditional-minded people, especially in the older age brackets, are disconcerted, upset and confused. So give them some space; instead of suing them, talk to them. Try seeing things from their point of view. Appeal to their better nature as Christians.

I've followed these conversations with great interest, and I'm convinced they need not deteriorate into a culture "war" with winners and losers, as Douthat's and Dreher's writings suggest. Is it possible to find a middle ground of accommodation?

In today's Washington Post, I have an op-ed that explores just that question. Thus far in the debates, both the civil rights side and the religious liberty side have joined together different kinds of wedding vendors (cake bakers, florists, photographers) into one group. But perhaps finer distinctions among different kinds or degrees of engagement with an event are necessary in this new moment for American pluralism. Some of these vendors don't attend the event, some do; some don't help plan it, some do; some of the events are enacted under civil law only, some are richly religious ceremonies.

As I say in the article, "We may need more reflection on what the law could force a citizen to do at a wedding or other religious ritual." In a country of almost unfathomable diversity -- one with strong anti-discrimination and religious liberty traditions -- the fine-tuning process is worth the effort.

Drawing distinctions to maintain a precise balance of religious conscience protections and publicly accommodated civil rights is neither a sign of fastidious hairsplitting nor a distraction from prophetically proclaimed truths on either side. Rather, it is necessary to preserve and perfect our experiment in diversity.

The editors gave the print edition the snappy title, "Many layers in the gay-wedding cake." But if you don't have access to the newsprint, a digital version (under a different title) is here.

About the Author

Michael Peppard is assistant professor of theology at Fordham University, author of The Son of God in the Roman World, and on Twitter @MichaelPeppard.

Topics: 
86 comments
Close

86 comments

Commenting Guidelines

  • All

Sorry - miss what you, Dothaut and Dreher (not that I pay much attention to Dreher) mean by *drawing distinctions*.  From my review, it appears that the AZ law specifically would have changed the current US legal standard that doing business for the public entails a responsibility to offer your services to the public (not to groups that you may or may not agree with).  In fact, on this legal base, the arguments about religious freedom go away - why?  they went away when you, as business owner, received the permission (from the public) to do business (yep, businesses are regulated, defined, and monitored for the common good in all its diversity - sexual, ethnic, racial, religious, etc.).

Dreher, etc. need to restudy the history of civil rights and racism.  Some of us lived through a period of time when we had white only restraurants, store counters, restrooms and business owners fought for the right to serve white only (yep, it almost came across as a religious freedom right and was articulated this way by some southern denominations/churches.  BTW, there also were may attempts at that time to *draw distinctions*).

Sorry, IMO, the same thing holds true with this poorly written and legislativelly passed bill. It would have granted certain folks an exception from serving the common good based upon a very narrow reading of their permssion to do business in the first place - permission granted by the public.

Okay, in your op-ed piece you cite a number of legal cases that *drew distinctions*.

Wonder, tho, if the example you use are not fundamentally different from both the AZ law and the distinction you are trying to make.

For example, peyote.....as one who works for the oil and gas industry especially in the Farmington, NM region and has large numbers of native american indians that use peyote, can tell you that this legal decision in no way changes how these large corporations implement their safety programs or their substance abuse policies......the common good (public safety, employee safety, etc.) define how far a specific employee can use that legal standard (thus, if you are found positive at work, your Peyote Defense doesn't stand a chance)

Foundry worker - this seems to be very different from the type of broad religious freedom exception that any type of *same sex* exception would have?

Hyde Amendment - well, this was about federal funding rather than about restricting or refusing abortion.  It also skips over the complications with federal vs. individual state laws on abortion. And it would seem to lead to what we are seeing now - state by state, we see more and more limits, restrictions, etc. put upon the federal law allowing abortion and many of these state laws appear to be driven by very narrow minorities and unnuanced (e.g. limit abortion while eliminating lots of very helpful public medical resources supporting good reproductive health - not exactly the public or common good stance.

What is missing from the New Mexico photographers case is why the same sex couple hired this couple given their obvious stance.....something is missing in this narrative.  If I was the couple getting married and approached someone to be the photographer and it was obvious they did not feel comfortable with my marriage, choice of partner, ceremony, etc.; why would I hire them?  Something is missing in this court decision and case.  It comes across as too black and white - too many nuances are missing. 

I read Dreher and Douthat quite regularly, and Sullivan, too.  Dreher and Sullivan are both (in my opinion) best understood as taking advantage of a low-cost vanity press to carry on about their favorite topics.  Their current squabble is unseemly.

The issue Douthat raised (and Dreher carries much further)  is entirley analogus to aguments I heard regularly across the Deep South in th late1960s: the new Power Eites did not appreciate the culture of the South and were trying to impose their alien political views by way of exinguishing an ancient and honorable society.  I grew up in south Georgia an worked offshore LA for a period, with a crew from LA,MS and AL.  You can read this agument to this day in the Neo-Confederacy sites (or in a portion of the comments to Dreher).

It is all about power and how we adjust to changes that take power away from us.  The rest is rhetoric: see Dreher and his discussions of the "Benedict Option" [he does NOT mean XVI] and the return of the Dark Ages.

“I’m particularly horrified by the attempt to force anyone to do anything they really feel violates their conscience, sense of self, or even just comfort.”

I wonder if he would have used the same argument when it came to overturning laws that outlawed marriage between different races?  What about public accommodation of races they looked down upon?  How about prohibiting Mormons from practicing polygamy (that certainly violated THEIR consciences!)  Ditto for Jehovah’s Witnesses and Christian Scientists who want to withhold medical treatment from their minor children?

Sense of self?  Comfort?  Really!!  How absolutely touchy-feely of Andrew.

"I’m particularly horrified by the attempt to force anyone to do anything they really feel violates their conscience, sense of self, or even just comfort."

He says that becaue he's a libertarian.

 The law constantly asks people to do things that violate their "consicences, sense of self, or comfort"  for the common good.  The thing is, they aren't actually being "forced" to violate their consciences ... they can follow their consciences, break the law, and pay the penalty, if they have the courage of their convictions.

Michael Peppard:  I read your op-ed.  The photographer is a "supplementary liturgist"?   A priest would laugh you out of his church for that stretch.

Since I haven't been involved in planning a wedding for 42 years (my own), I don't know how modern pastors feel about photography during weddings.  But when cameras were bulkier and more intrusive, it was the rule that photos could not be taken during the nuptial Mass any more than they could be taken during other Masses.  

Back then, if couples wanted photos of themselves at the altar, they had to re-create the photos after the ceremony.  After the Mass, the wedding party would process out of the church, then go right back inside to pose for pictures.  The photographer a supplementary liturgist?  He was more like the director of a play.

I have always believed that this "religious liberties" argument is a canard for clinging to a particular group's prejudices and biogtries.  Remember, the "states rights" arguments of racists against the abolition of slavery, and then later in history for the civil rights for people of color?  

Douhat and others scream about their 1st Amendment liberties to the exclusion of the rest of the other constitutional protections of individual liberties.  Rather, Douhat et al. have difficulties with the 14th Amendment that requires the "equal protection of the law" applies to all citizens, even women, gays and lesbians.  

I'm sure that this all makes Douhat sad, but that is the choice that America has made:  public accommodations must be available to everyone, not just the folks that we are comfortable with in our lives.  

Face it, the religious liberty crowd just believes that some of us [namely, social conservatives] are more equal than the rest of us.  In their world, women, gays and lesbians are a lot less than the angels as compared to themselves.  

The religious liberty crowd are all pining for the days when their imagined superiority was confirmed by both law and religion.  Sadly for them, the world has moved on - just ask my children who see this whole discussion as farce.

BTW, has anyone ever met a man who was a wedding planner who is not gay?  Doesn't that tell you something about the economic tensions floating around the wedding industry?

Elane Photography, LLC v. Willock has prompted much speculation about First Amendment rights without a close reading of the opinion. New Mexico’s law against discrimination depends upon the choice made by Elane Photography, a business corporation. The law applies to corporations and as such imposes an obligation to photograph same-sex ceremonies or marriages only if the company chooses to photograph ceremonies or marriages between heterosexual couples. The New Mexico Supreme Court did not decide any issue of corporate religious rights.

On this issue, like so many others, "hairsplitting"  is not merely important it is critical.  The effort and actions required to support religious "conscience" seems justifiable.  Without a "conscience" a religion is hardly possible much less useful.  Religious "liberty" seems another matter entirely.   Fact is, I have no idea how to define such a thing nor do I believe anyone else does. Our "free will" was given to us as a part of our imperfection.  The two are inseperable.  We are at liberty to make mistakes, to ignore our responsiblities, or not.  I am suggesting every options we face is decided soley by our choices.  On the issue of religion, however, unless choice is indeed an option there is no sense at all in debating the topic.

I don't see where the issue of "rights" is involved.  Those so adamently clammering for "religious liberties" would do better to live their "religious responsiblities".  That would likely give them little time or need to lament so little opportunity to "live their faith".  I cannot image the likes of Mother Teresa suggesting she found too little opportunity to live her failth.  On the contrary, what she lacked was sufficient time and energy.

As for Andrew Sullivan being a libertarian.  I don't believe that's true.  His ability to rationalize hypocrisy seems entirely too limited.

Oops!  "I am not suggesting...." rather than "I am suggesting ....."   Sorry.

Further to what Harold Hartinger said:

“Religion” can muck up people’s thinking between public and private. If, as a business, you are set up, establishing a judicial person or partnership or sole proprietorship, and rely on the secular state’s power, such as the enforcing of contracts, financial agreements, collection of debts, police power,  etc. there should be very little question as to where your private views stop and compliance with law begins. If one is to use the law to buttress one’s ability to do business, one cannot pick and choose which laws to obey or disregard.

At Truthdig, Kathleen Franke, director of Columbia University's Center for Gender and Sexuality Law, points out that the "religious freedom" crowd want to use religion as a "trump card — you throw it down, it’s a conversation stopper, and we don’t know how to get out of this impasse."

(http://www.truthdig.com/report/item/sex_gender_and_the_familiar_fight_over_religious_exemptions_20140313)

She notes that this is precisely the tactic that many Southerners used to resist integration, maintaining that God had separated the races and it violated their religious freedom to ask them to integrate--an argument that, as Franke observes, the Supreme Court rejected when Bob Jones University tried it:

Really since the late 19th century, when opponents of expanding notions of equality have lost in the public arena, their plan B has been to seek refuge in religion. We first saw it in racial equality cases, and more recently in the areas of reproductive rights and gay rights. When Congress or a state legislature or a federal court mandates the integration of public schools or upholds sex equality in the workplace or allows same-sex couples to marry, opponents of those efforts fall back on religion to say, “You can have those laws, they just don’t apply to me.”  (http://www.drslewis.org/camille/2013/03/15/is-segregation-scriptural-by-bob-jones-sr-1960/)

 

 

Michael - bravo.  Your point about making distinctions is important.

Mark L - I was a young child in the 1960s and didn't live in the South, so that chapter of the civil rights movement was one I didn't personally experience.  But in important ways, the analogy seems pretty superficial.  Granted, I am speaking from the point of view of a Chicagoan, which has a large gay community that has worked hard for many years to assert basic human rights (such as the rights to employment, housing and being able to walk down the street without being attacked). I don't doubt that a gay couple in Chicago still suffers a thousand subtle and not-so-subtle taunts and cuts every week.  Can we make a distinction between that sort of cultural prejudice, and genuine religious liberty?

You say, "It is all about power and how we adjust to changes that take power away from us".  I believe that statement makes sense in reference to the Jim Crow South of the 1950s.  I don't see that it applies at all to the situation of gay persons in a place like Chicago in the 2010s. Whereas the gay rights movement has substantial power - Illinois recently legalized same sex marriage - wedding photographers have no power, at all, except the power to decline to personally participate in a ceremony that offends their freedom of conscience.  Wedding photographers are not even organized.  A self-employed wedding photographer is the archetype of the little guy, with no clout or influence whatsoever.  The photographers I happen to know are somewhat free spirits - they do what they do because they like photography, they like working for themselves and being able to arrange their work around their lives and vice-versa.  It seems to me that all these little guys want to do is have the freedom to do what they want.  In a place like Chicago, if a wedding photographer turns down a same-sex wedding ceremony, there will be 100 other photographers waiting in line for the job.  Jonah Goldberg recently suggested that, should one of these self-employed wedding service providers turn down a same-sex wedding ceremony, "“the sane response would be, "You don't want my business because I'm gay? Go to hell," followed by a vicious review on Yelp.”  Why shouldn't that suffice?

 

Really since the late 19th century, when opponents of expanding notions of equality have lost in the public arena, their plan B has been to seek refuge in religion.

And again, I would say that this claim is irrelevant for a self-employed wedding service provider.  In the cases I've read about, there was no resorting to a "plan B".  Nor was there a Plan A.  There was no plan at all.  There was a simple assertion of freedom of conscience.

Frankly, I'm pretty surprised that liberals, if the comments here are indicative, have no respect for conscience claims.  Those who refuse to serve in wars for religious reasons, those who went to jail for protesting at the School of the Americas,  are exercising their freedom of conscience.  Has Jean Gump been forgotten already?  What she did is far more radical than anything that a wedding cake baker does in declining her services for a same sex wedding.

 

Further to the topic from Richard Kim in The Nation:  http://www.thenation.com/article/178820/bigots-lament

"Jonah Goldberg recently suggested that, should one of these self-employed wedding service providers turn down a same-sex wedding ceremony, "“the sane response would be, "You don't want my business because I'm gay? Go to hell," followed by a vicious review on Yelp.” Why shouldn't that suffice?"

Substitute for same-sex:   Jewish, Black, Mixed Race, Catholic, Mormon, Atheist.

Will that suffice?

Jim P:  where does "freedom of conscience" enter into it in those states that have virtually outlawed a woman's right to have an abortion?

Where did freedom of conscience enter into it for Mormons or others who want(ed) polygamous marriages?   For Jehovah's Witness and Christian Scientists who want to withhold medical treatments for their non-adult children in conformance with tenets of their religions?

"Freedom of conscience" is abrogated quite often when the majority decides that they disagree with the conscience claims of the minority (see above).  It is also abrogated when the courts decide that such conscience claims violate constitutional protections of equal opportunity for minorities as in withholding the right of mixed race couples to marry.

It seems to me that the old public/private distinction is crucial in thinking about this issue. The first successful civil rights laws involved public accomodations, not private matters like inter-
Arriage. One simple reason for that, no doubt, wasthat it is easier to identify what are clearly public latters -- like eating at a lunch counter of a business offering services to the public. But even some public offers are dicey -- a lawyer advertizes his services to the public, but he does not thereby offer to represent every client who can pay his or her fees. Even his personal inclinations to represent or not are left to him.

It seems to me that the photographer and baker issues are issues.
be ause they have been asked to participate in a •private• ceremony-- a ceremony they want no part of, or even see as a matter of conscience

Yes, consciences are themselces private entities, but they bear on both public and private matters. The question is: when does a person have a right not to participate in public or private actions? I say it all depends, and depends on many other fa tors, including whether tge action is necessary to preserve the common good (e.g. a person can be drafted into the army or must pay taxes), or on whether the action is normally necessary for each individals' well-being(e.g, being served food in a restaurant) or whether the person is being asked to serve in a private event or process (e.g., a wedding or a divorce case).,

Jimmy Mac - I asked first :-).  If you want me to answer yours, you'll need to answer mine first.  And I have standards for answers - answering with more questions doesn't count.

Jim P: The "power" I had in mind is the implicit power of being part of a group that defines the norms of society.  It is part of the unquestioned background that makes the workld "'sensible" for all those who belong to that power group.   It is the back-up for what they belive to be "common sense,"  and if it should b withdrawn, they (a) don't know how to stand on the deck any longer and (b) desperately want that stability back.

We went off the tracks in ever allowing a Christian sacrament to have the authority of the State.  We get on quite well leaving baptism to the traditions of our various churches (if any), and services for the dead, also. 

Mark L.

If they believe that no one should be required to provide services to people they object to, let them make the case that we should eliminate all anti-discrimination laws rather than just the subset. Let the "No Gays" sign be joined with the "Whites Only", "No Catholics", "No Jews", and "No Irish" signs. There is no reason that we should defer to one form of potentially religiously based discrimination while prohibiting others.

While these writers write pages about the damage done to people who are forced to offer their services to all members of the public, they give no thought to the effect of widespread discrimination on the minority populations who must work much harder just to get the things that others can take for granted or the mental burdern of repeated rejection. Should planning a wedding in a rural area require a modern version of The Negro Traveler's Green Book in order to be able to find all of the necessary elements?

 I leave these matters to better legal and constitutional minds than mine. But here's a completely hypothetical case, having nothing to do with sex, marriage, or anything of the sort. Suppose I run a brokerage, and advertise myself as a broker for socially conscious investors. No gambling or firearms, tobacco, liquor, military-industrial complex stocks, and so on. Suppose one of my customers asks me to buy a lot of General Dynamics, Boeing, Philip Morris, etc. etc. for his account with me, and I say no. But, I add, there's a broker just a block away who will be happy to help. Is that OK?

Do I confuse the issue if I advertise myself as a socially conscious religious brokerage? or a specifically Christian brokerage? Or Buddhist, Jewish, etc. brokerage? Maybe my objections are not religious, but philisophical (I can't reconcile General Dynamics with my Platonism, Kantianism, Hegelianism (!) or whatever else beliefs. Does that make any difference?

Nicholas, your hypothetical business practice is "customer neutral" and service specific.  Let's say I run a catering business that is vegan only -- I am discriminating in the service I am providing not who I am providing it to. 

This is not a perfect distinction, but is probably acceptable in most instances, if you are open about it and don't inconvenience people unduly. 

Let the "No Gays" sign be joined with the "Whites Only", "No Catholics", "No Jews", and "No Irish" signs.

Except that nobody has posted a "No Gays" sign, nor is that what any of the disputes are about.   Do you truly not see this?

Jim P: The "power" I had in mind is the implicit power of being part of a group that defines the norms of society.  It is part of the unquestioned background that makes the workld "'sensible" for all those who belong to that power group.   It is the back-up for what they belive to be "common sense,"  and if it should b withdrawn, they (a) don't know how to stand on the deck any longer and (b) desperately want that stability back.

Mark - I think at least part of what is at issue here is whether the norms of society actually have changed.  In a fair and just society, we expect our laws to be aligned to our cultural and social norms.  In some jurisdictions, laws respecting same sex marriage have changed.  Whether the social norms have changed along with them is very much open to question.  It is particularly open to question in jurisdisctions in which existing laws have been invalidated unilaterally by judicial fiat.

Every time a state permits gay marriage, we are shown images of ecstatic same-sex couples, waiting in line to finally, finally be able to marry.  I am sure they are hoping, maybe even assuming, that the new laws mean that at last they are on the same footing as other couples.  Legally, that is the case, but culturally and socially, it may not be a good assumption.  I am sorry if that is a hurtful thing to note.

I believe the conservative Christian perception is that activists have rammed through changes in the law, either legislatively or judicially, but the underlying social and cultural norms haven't caught up.  And now, those same activists are using the new laws as a cudgel to beat into submission those who don't share their social and cultural assumptions (e.g. that same sex marriage is valid and socially acceptable).  The common term for this process is "legislating morality".  It has often been noted that it doesn't work.  We may be seeing this at play in these instances.

Americans tend to be broadly tolerant.  Certainly, Americans as a whole have grown more tolerant of same sex couples over the last generation.  These small businesses who have been sued, claim to have a conscientious objection to same sex marriage.  Their motives may be benign, or odd, or hateful - each proprietor may have a different point of view.  Why not just tolerate their quirks?  Remember: this is not Jim Crow.  This is not a case in which virtually every wedding photographer in town refuses to do a same sex wedding.  There are millions of photographers out there.  Finding a good one who will do our wedding shouldn't be difficult.

 

What if you live in a hick town with only one or two wedding photographers? And why this fascination with using the language of violence to describe those who have been the ones hitorically to be truly :cudgeled?" And why should victims have to be responsible for the bruised sensibilities of their oppressors? Why use a cute term like "quirks" to describe discriminatory practices?

I mean, you frighten me, Jim Pauwel. Not because of the way you coddle homophobes, but because I believe that one day in the near future you will read over what you've written above, and then be so ashamed that you will throw yourself whole-heartedly into designing a time machine that will enable you to visit your former self and set hm straight. I am afraid of what your time machine will do to the fabric of the universe, Jim Pauwel. Everybody wishes he or she could redo a past bit of foolishness, JIm, but it will be very selfish of you to actually do it with your time machine. Remember that.

I will say this:  I have more sympathy for the photographers than I do for the bakers and florists and tailors, for whom I have none.  Photographers are more likely to be active participants in weddings (in fact, in my more recent experience, overactive participants).  So they are "personally" involved in ways the others are not, and their creativity, etc. is being called on.  If you are  freelance writer, I am pretty sure you cannot be forced to write an article in support of a position you really don't agree with just because someone likes your writing style. 

So I would not say that there is "no issue" at all in these disputes.  What I would say, however, that as between the writer and the photographer, the photographer is clearly representing other people in their finished product, and their wedding pictures do not reflect anything other than their skill as photographers, certainly not their point of view about the morality or suitability of the marriage participants. 

I would not want a photographer at my wedding if I knew he had a big problem with me (of any kind), but their claim for protection of conscience is a weak one. 

Abe, it's easy: get editing privileges at dotC, then erase one's prior comments, or, better, edit and improve them! I'm afraid that tha's why we lost our short-lived editing privileges. dotC is against time machines.

Jim P - you say: ".... was a young child in the 1960s and didn't live in the South, so that chapter of the civil rights movement was one I didn't personally experience.  But in important ways, the analogy seems pretty superficial."

Sad that you don't know or understand both the history nor the current realities in Chicago in terms of the church and racism.  From a couple of historical resources:

"Chicago and its churches developed through the twentieth century following strict ideas of ethnic boundaries. Chicago neighborhoods resembled tribes, as immigrants tended to settle in similar areas and to create institutions reminiscent of their homelands, especially their parishes.  Historian John T. McGreevy writes in Parish Boundaries, “Fifty-five percent of Catholics in Chicago worshiped at national parishes in 1936 … over 80 percent of the clergy received assignments in parishes matching their own national background.”2 Tribalism of neighborhoods and parishes made the experience of African Americans in Chicago over the twentieth century strained and violent."

Chicago became the most segregated city of its size in the late 1950s. Government action escalated separation through urban renewal projects in the 1950s and 1960s that were in many ways designed to retake black neighborhoods by exploiting general public distaste for public housing.

The Catholic Church mirrored the typical city responses to black migration: flight or fight. McGreevy  comments that as blacks moved in, “their encounters with the ‘white’ world were filtered through a distinctly Catholic focus on parish and place.”  As neighborhoods changed over, creating black ghettos and isolated spaces, parishes went from all white and full to all black and dwindling in size.

Whites, unwilling to move, reacted violently to African-American newcomers. IAF organizer Edward Chambers recalls that as blacks began to purchase better homes in the southwest community, white Christians, Catholic and Protestant, hatched terror plots to bomb porches of newly purchased black homes. The lay Christians “were in cahoots with the police and the fire dept, they knew what they were doing.”74 After setting a fire, intimidators would “Call the fire department to report the fires … [Firefighters] would go in and chop up the house looking for a fire, but of course there was no fire.”75 Whites bombed black homes in hopes of chasing people away. Chambers adds, “It was a total embarrassment to the Christians. [The southwest side] was a very Christian, Irish Catholic neighborhood.”76

Stritch's method was to continue to use *national parishes* and thus allocated certain parishes for african-americans without doing anything to address white flight, racism in the schools, etc.

Meyers followed Stritch and, to his credit, was not a proponent of national parishes, ethnic neighborhoods, etc. and he squashed all segregation in catholic schools effective in 1960.

When I left Texas and went north for college/grad school (Chicago), it was my first time to interact with kids my age from Chicago, NY City, Boston, etc.  Was always amused about how they proclaimed the *south* as segregated while completely ignoring or rejecting the facts that pleces such as Chicago and Boston were some of the most segregated cities in the US as late as 1965 and especially the reaction to integration by some catholic parishes.  Always easier to point fingers than to accept reality.

Bill - Chicago has changed since the days of Cardinal Stritch.  I actually am aware of that racial history in Chicago.  Whether I lived in the Deep South or in Chicago in the 1960s (in fact, I lived in neither place at the time), I was too young to observe or experience that chapter of the civil rights movement.  At any rate, the topic here is not racism but tolerance of objections to same sex marriage.

Barbara - you're drawing some of the distinctions that Michael Peppard seems to be calling for.  I'm not sure whether these are distinctions that make a difference.

Abe - can you imagine that anyone could object to doing something that enables a same sex marriage, and that the objection is not rooted in homophobia?  I don't find it difficult to imagine that.  People object to being required to do things for all sorts of reasons that aren't rooted in character flaws.  One common one is that some people bristle at being told what to do, period, particularly by the government.  Another is that their religion teaches them that the union of two persons of the same sex is unholy, and so they don't want to be involved in something unholy.  Racism is unholy, too.  So is homophobia.  I don't want to do anything that enables either one.  That's why I'm attempting to make a distinction between homophobia on the one hand, and objections to participating in a same sex marriage on the other hand.  Sometimes you're willing to converse.  I hope this is one of them.

 

 

I wonder if an Orthodox Jewish photographer or a Muslim photographer has a religious liberty right to refuse to work at a pig roast. That is assuming he is not required to participate in the feasting, but only to photograph other people doing what he considers to be unholy.

If a same-sex couple assures a photographer (or baker or florist) that they are going ahead with the ceremony whether or not the requested service is provided by anyone, is there still a question of cooperating with evil, or would refusing to work the event then be just a matter of personal distaste unprotected by the First Amendment?

Jim, I can imagine people refusing to work in cooperation with a same sex marriage for reasons apart from homophobia; all of those reasons are stupid.  And it blows my mind that you think somebody who thinks  "the union of two persons of the same sex is unholy, and so they don't want to be involved in something unholy" is anything other than a textbook-worthy example of a homophobe. 

Also, Jim, I don't need your paternalistic admonishments to engage in conversation. 

http://tinyurl.com/nrccr69

Jim Pauwels,

I consider being denied service a greater than evil than forcing public accomodations to serve the entire public. The social norm of serving all who come plus legal prohibitions against common types of arbitrary discrimination is a good thing. It protects minorities from being cut off from large parts of society and protects business owners who wish to serve all from being pressured to exclude certain customers or employees.

Jim Pauwels, the bakers and photographers in question are in states that have included "sexual orientation" in their law defining the classes protected from discrimination by "places of public accommodation"

Without those state laws, the bakers and photographers could refuse to work for anyone they disliked.

You might feel that that those states made a mistake in including "sexual orientation" as a protected class, A voter in those states who felt that way could try to get the legislature to change the law. I don't think that would be likely to get enough votes to pass, but I think it's important to realize that that the people of the state decided at some time in the past that discriminating against people because of their sexual orientation wasn't acceptable. It's not some new privilege that same-sex couples are claiming. 

 

 

Inspired by just reading in an alumni magazine of the recent, post-Pro 8 marriage of an old friend to his*long*-time companion, I wonder:

Suppose I am a Christian.  I receive a wedding invitation from my old friend.   I understood in school that he was homosexual, also that he was and remains a committed Christian.  He is a famously generous man, a wonderful musician, and a disinguished lawyer.  The wedding is to be in San Francisco, an hour and a half's drive, on a Saturday.

On what basis would I be justified in refusing to accept his invitation to participate in his wedding?  I assume we all agree that I may not lie, claiming a prior commitment or something. 

Seriously, what could possibly justify the hurt to a friend?  And if not to a friend, then to anyone?  Either we are committed to love our neighbors, or we are not. 

There is a constitutional argument that might apply to the photographer, if not to the baker - that the photographer's product is "speech" and that compelling someone to utter speech he/she does not support violates the first amendment.

The New Mexico Supreme Court rejected that argument. The US Supreme Court has now been asked to hear the argument. It's its choice whether it wants to become involved.

Here's one argument for the photographer:

http://object.cato.org/sites/cato.org/files/pubs/pdf/elane-photog-cert-f...

Come on, guys.  Leviticus says homosexual relations are an abomination, and if someone believes that the Bible has to be interpreted literally and that its laws are all ever-lasting, then if someone believes that about the Bible, then he/she is not neccessarily a homophobe -- he/she just is a bad interpreter of Scripture.  And if you go around calling them gay-haters, and they know that they aren't, then you aren't helping the cause of gay people.  You're just making those voters mad.  

Yes, it's analogous to slavery,I think.  In the Bible slavery is permitted, so why wouldn't someone who has been brought up in a slave-holding society not think it was permissible for him/her?  I knew lots of old folks who didn't hate black people who just thought that segregation was the way it should be.  Yes, most of them changed a lot in later years, but they weren't anti-black people to begin with.  

And my experience with segregation in the South and segregation in the Northwas the same as Bill deHaas'.  Talk about planks in one's own eye.

And, Abe, since when don't people have a right to be dumb (I mean truly dumb)?  And what do you propose doing with all those people less smart than you?  Denying them their civil liberties just because they're stupid?

Barbara,

Your customer neutral v. service specific distinction is a good one, I think.  It certainly reflects the way the lawyers operate, if only by reputation if not advertisement: some lawyers are corporate lawyers, some criminal lawyers, some personal injury lawyers, some civil rights lawyers, etc.  (Would a black lawyer have a right to refuse to represent David Duke?  Why or why not?)

 

Ann Oliver,

First, people are responsible for their interpretation. People who are willing to consider the broader themes over specific texts with respect to something like slavery but are not willing to do so with respect to homosexuality are making choices. Maybe they can argue that they are interpreting it the correct way, but they can't pretend that there is only one choice and they are simply following the Bible.

Second, there are a lot of steps between "God says homosexuality is bad" and "We should ban gay marriage." People are responsible for the logic that connects the two rather than calling it simply following the Bible.

Third, people who follow leaders are responsible for their actions. The difference between doing hurtful things because a leader instructs one to and doing them on one's own initiative is of little significance.

Finally, indifference is a kind of hate. People who approach these issues with no consideration for how their actions and beliefs impact the lives of gay and lesbian people is treating them as beings of zero worth.

Ann, I don't even.

Jim, I can imagine people refusing to work in cooperation with a same sex marriage for reasons apart from homophobia.

Ok - you can imagine it.

 And it blows my mind that you think somebody who thinks  "the union of two persons of the same sex is unholy, and so they don't want to be involved in something unholy" is anything other than a textbook-worthy example of a homophobe. 

I guess we both stand corrected: you can't imagine it.

Ann asked the key question before I had a chance.  Awaiting your answer.  And I'll cut out the paternalistic correctives if you'll cut out the trollish smartassery.  Deal?

 

 

There is a constitutional argument that might apply to the photographer, if not to the baker - that the photographer's product is "speech" and that compelling someone to utter speech he/she does not support violates the first amendment.

I doubt that a wedding cake baker, or a designer of wedding attire, would concede that the products of their crafts are less artistic, or less "speech", than a photographer's.  How a court would wade through those claims, I have no idea.

 

 

Jim Pauwels, the bakers and photographers in question are in states that have included "sexual orientation" in their law defining the classes protected from discrimination by "places of public accommodation".  Without those state laws, the bakers and photographers could refuse to work for anyone they disliked.

Right.  I've read that one of the pertinent facts about the proposed/now-vetoed Arizona legislation is that Arizona is one of the many states in which sexual orientation actually lacks such protected-class status (although certain Arizona municipalities do accord it such protection); thus, Arizona bakers and photographers outside of those municipalities already possess the right to say, "No, I won't do your wedding" for religious reasons or, presumably, any reasons whatever.

You might feel that that those states made a mistake in including "sexual orientation" as a protected class, A voter in those states who felt that way could try to get the legislature to change the law. I don't think that would be likely to get enough votes to pass, but I think it's important to realize that that the people of the state decided at some time in the past that discriminating against people because of their sexual orientation wasn't acceptable. It's not some new privilege that same-sex couples are claiming. 

I do think that sexual orientation should be a protected class, for reasons beyond the very narrow considerations we're discussing here.  If I were an Arizona resident, I would support legislation to make sexual orientation a protected class.  Perhaps the bishops would, too.  But I would also wish to carve out a religious exception for the specific instance we're discussing here: being forced to take part in same sex weddings.

 

I do not not how to argue with somebody who thinks a person can call gays an abomination and not be thought of as hating gays. I do not know how to argue with somebody who thinks a person can endorse the segregation of people of African descent from white society and not be thought of as hating those they wish to segregate. 

I do not know how to do it, and I do not fetishize "conversation" to the extent that I even want to know how.  

I mean, what the hell? What are the other situations where somebody can say, "I think you are an abomination, but, hey, I mean that in a religious way, not a hateful way. Some of my best friends are abominations."

Jim Pauwels,

I don't see any reason why same sex marriage should be singled out as the only exception. People might have religious objections to other events related to race, sex, or religion.

Also, the bishops wouldn't support anything that might help gay and lesbian people. I have never seen a bishop find a form of anti-gay discrimination that they consider unjust.

I don't see any reason why same sex marriage should be singled out as the only exception. People might have religious objections to other events related to race, sex, or religion.

Hi, Ryan - maybe there are other legitimate objections, too, and maybe there is some underlying principle that helps us as a society to distinguish for which objections an exception should be made.  I admit I don't know what that underlying principle is.  My intuition, which admittedly is as faulty as the next guy's, is that it is wrong to deny an African American a seat at a lunch counter by reason of her being black, but it may not be wrong to decline to provide a service to a same sex marriage by reason that same sex marriage is morally wrong.  

The difference, it seems to me, is that an African American is a person, but a same sex marriage isn't a person - it's a thing.

To make that distinction clear: in my view, the baker of wedding cakes shouldn't refuse to sell a gay person a cookie if he walks up to the bakery counter and requests one.  The photographer shouldn't decline the request of a gay customer to do his Christmas card pictures.  If the baker or the photographer says, "I'm not serving gays, period.  Stay out of my shop!" then I'm right with you, Abe, Mark L and presumably everyone else around here.  I wouldn't make a religious exception for that.

Also, the bishops wouldn't support anything that might help gay and lesbian people. I have never seen a bishop find a form of anti-gay discrimination that they consider unjust.

I don't know.  Catholic teaching says they should support things that help.  I'd like to give them a chance to prove it.  I do think their attitudes have been evolving recently, at least some of them.

I do think that many Catholic clergy - I'm talking about priests and deacons - would support actions in pursuit of justice for LGBTs in their communities.  (As things stand now, though, with same sex marriage, I don't know how welcome a Catholic cleric would be at a rally or meeting.)

 

The difference, it seems to me, is that an African American is a person, but a same sex marriage isn't a person - it's a thing.

I do understand what you're saying here, but while same sex marriage is not a person, neither is eating at a lunch counter a person. African Americans and gays are people.

 

Ryan and Abe - this article by William Saletan at Slate does a deeper dive on the distinction I made in my previous comment to Ryan.

http://www.slate.com/blogs/saletan/2014/03/07/gay_marriage_and_religious...

 

 I have never seen a bishop find a form of anti-gay discrimination that they consider unjust.

According to Wikipedia, "Uganda's Catholic Archbishop of Kampala Cyprian Lwanga stated in December 2009 that the ["Kills the gays"] bill was unnecessary and "at odds with the core values" of Christianity, expressing particular concerns at the death penalty provisions. Lwanga argued that instead homosexuals should be encouraged to seek rehabilitation."

So, there you go: there is at least one form of anti-gay discrimination, namely, killing them, that a bishop considers unjust.

 

The difference, it seems to me, is that an African American is a person, but a same sex marriage isn't a person - it's a thing.

First, I don't think you can so easily separate a person from their marriage. Someone has to refuse to service to a person, and a person is the one who has to search for another provider.

Second, this would imply that refusing to serve an interacial couple would be okay because one is discriminating against their marriage rather than the persons. Would you agree with this?

 this article by William Saletan at Slate does a deeper dive on the distinction I made in my previous comment to Ryan.

http://www.slate.com/blogs/saletan/2014/03/07/gay_marriage_and_religious...

He focuses mainly on suggesting that Vanessa Willock's refusal to serve a gay couple wasn't based in hatred for the couple. Ultimately, I don't care whether she is motivated by hate or not. The discrimination is wrong regardless of the motivation.

Minor point about what is art: Many museums have collections of photographs because they are appreciated as artworks.  Some even have collections of costumes.  But I've never heard of a museum's collecting wedding cakes.  The cakes are sometimes said to be "works ofart", but the value of such artworks are not the sort that society as a whole consiers valuable enough to preserve.  

Which raises the question:  for a photographer to be protected by the free speech clause must his work have social value?  But let's save that for another thread -- one on aesthetics.  (Aesthetics?  Comonweal doesn't seem interested in the subject.)

 

Ryan --

 

You seem to think that people are a lot more rational than the expert Daniel Kahnemann does.  Read "Thiking: Fast and Slow".  Fascinating. As an old logic teacher I can assure you that it was quite evident to me before that book that people  need help in using logic and in looking at our own presuppositions.  I dare say that most of the logic teachers of the last 2300 years would agree -- except for those who are congenitally incapable of handling linguistic fallacies very well.  We are often wrong automatically due to unconscious psychological processes -- it's part of human nature, and we (including you) aren't even aware of the possibility that that is happening.

 

Does that mean we should all be skeptics?  No, but we should all be critical of both others' AND our own presuppositions and logic. 

Mark Logsdon, assuming that you are not in frequent contact with the friend you can decline without specifying a reason.  Only if he calls you are you faced with this dilemma.  Then you can tell him directly why, whatever your reasons are. 

Ann, although not without limits or ethical tensions, you might decline a representation because you truly believe you can't do an adequate job of advocating a position.  Lawyers have to decline representations where they have an actual or appearance of conflict.  This kind of conflict and its ethical dimensions has been widely discussed.  Most lawyers -- especially criminal lawyers -- believe stronly in the principle that whatever crime you are accused of, the government has to prove that you are guilty.  Criminal lawyers are quite used to representing people they don't like and would not want to emulate or even meet on the street.

Barbara,

 

I think I can understand the mechanics of saying No. Not a all diffcult as long as on is willing to be hurtful to a friend.  We just thank God that we are not like them, and pass by on the other side of the road.

But where in the Sacred Writings do we see Jesus do this?

Mark L

I wrote,

The difference, it seems to me, is that an African American is a person, but a same sex marriage isn't a person - it's a thing.

... to which  Ryan commented,  

this would imply that refusing to serve an interacial couple would be okay because one is discriminating against their marriage rather than the persons. Would you agree with this?"

That's an interesting parallel.   Remember: we're talking specifically about religious/conscientious objections.  Refusing to collaborate in an interracial wedding for racist motives doesn't strike me as the same kind of thing.

Are there many real, actual people who would raise a specifically religious objection to collaborating in an interracial wedding, e.g. the Bob Jones people?  I'm not completely sure if that is what Bob Jones U objects to (I thought their bugaboo was interracial dating on-campus?), nor how they've fared in court (I think the answer is, Not well).  I know that the Supreme Court was skeptical of the claim that the use of peyote is a religiously protected act.  I'm not sure how the Court sorts out religious exemptions.  Does the Court accord more religious-exemption sympathy to beliefs held by mainstream religions like Catholicism, Orthodoxy, and Evangelical Christianity, (and, I believe, Orthodox Judaism and Islam) than it does to religions that use peyote as a spiritual stimulant?  I'm not sure.  .

[Saletan] focuses mainly on suggesting that Vanessa Willock's refusal to serve a gay couple wasn't based in hatred for the couple. Ultimately, I don't care whether she is motivated by hate or not. The discrimination is wrong regardless of the motivation.

That's an interesting approach, but it seems that legally, the motivations are key.   Here is Saletan:

the New Mexico Human Rights Commission ... found Huguenin guilty of discrimination: “Ms. Willock thought that Ms. Elaine Huguenin's response was an expression of hatred.” [Saletan is quoting here from the Commission's ruling]

In fact, it's not really even the vendor's motives that seems to be key here; it's the same sex couple's *perception* of the vendor's motives.  I doubt I would be alone in being concerned that another party's perception of a vendor's motives can be the basis for imposing onerous legal punishment upon the vendor.

 

About the wedding cakes --

 

Consider this hypothetical:  What if the spouses insisted on having a Bruce-and-Bruce statuette placed on top of the cake? 

 

 It seems to me that there would be three constitutional issues involved:  1) the equal protection clause making the marriage legal for gays, 2) the religious freedom clause protecting the baker who doesn't want to participate in a process that violates his religious principles, and 3) the free speech right of the baker to not-say-I-approve-of-their-action. 

 

 What this case makes crystal clear is that that the baker and the spouses actually have *conflicting* constitutional rights.  However, many people don't want to admit that the Constitution itself is not a perfect system -- we can indeed get inconsistent directives from it.  So what to do, what to do?  The disparate rights must somehow be weighed against each other.

 

If the baker had to place the statuette on the cake even though he *says* nothing explicitly, that could be interpreted as *showing* his  approval of the marriage.  But even though it *might* be interpreted that way, it also might *not* be so interpreted, so that clouds the facts of the case.   So is his right not-to-approve so clear and weighty that it would outweigh the spouses right to buy such a wedding cake in the first place?  (Such a wedding cake is not part of their religious ritual.)  

 

So HOW does one weigh one right against the other?  I haven't any idea how to weigh these claims.  But all is not lost.  Sometimes the courts can by-pass the necessity to make such judgments.  In this country it is also clear that in most cases one baker's refusal to make such a cake does NOT prevent the spouses from exercising their right to have such a cake -- there are always other bakers (unless you're in the wilds of Alaska in February?).  It seems to me that this fact makes a lot of us think, OK, you want a cake with Bruce and Bruce, make another phone call to a different baker.  What I'm saying is that this particular case is a clash of two relatively minor issues and it can be solved easily with another phone call. 

 

Is that absolutely fair to the spouses?  No, it's not.  It will cost them at least one phone call.  But I think making the baker violate his conscience (no matter how obnoxious his conscience) would do more harm to the State.  Why?  Because it is in most cases overwhelmingly to the advantage of the State to have citizens who follow their consciences (e.g., not to lie, cheat, rob, etc., etc., etc., etc. . . .) -- and that includes bakers whose consciences preclude making certain cakes and gay spouses whose consciences tell them "We ought to get married".  Their *rights* to their consciences  should be respected (if not the content of their consciences), even when the majority of the citizens disagrees with one or the other side. 

 

The Constitution does not promise that we shall all like each other or all approve of each others' consciences.  That's the cost of diversity.

Jim Pauwels,

Forty years ago, people were arguing that integration and interacial marriage were religious/conscientious objections. It has since become unacceptable to make this argument, and even Bob Jones University dropped its objections to interacial dating in 2000. However, people were making arguments that are indistinguishable from those being made today: they had a religious objection to doing business with certain groups of people and punishing them for refusing to do so would infringe their religious liberty. The courts aren't capable of distinguishing supposed legitimate non-hateful religious motivations to discriminate and bigotry, and asking them to try to do so would be a massive meddling of government in religion.

The commission noted that the couple considered her refusal hateful. The law reads:

any person in any public accommodation to make a distinction, directly or indirectly, in offering or refusing to offer its services, facilities, accommodations or goods to any person because of race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, spousal affiliation or physical or mental handicap, provided that the physical or mental handicap is unrelated to a person's ability to acquire or rent and maintain particular real property or housing accommodation;

It does not mention hate as a necessary component. A person who offers services to the public and refuses service on the basis of sexual orientation has violated the law.

Ann Olivier,

I don't think humans are that rational, which is part of my point. People who jump from Premise A to Conclusion B due to their prejudice rather than a logical argument isn't just following the implications of Premise A. Rather than objecting that they don't feel like they are acting in a hateful manner, they should reflect on whether they can reach Conclusion B from Premise A without relying on their potentially biased intuitions.

Jim Pauwels,

Thanks for your contribution to this thread. I don't understand why it is so hard to get agreement on some basic points, like:

1. freedom of conscience is a fundamental human right, certianly in this country

2. most of us are very tolerant of others, and have no interest--for example--in preventing homosexuals from doing whatever sexual acts they want to do in private

3. that many will, and do, find same sex acts to be distasteful and would prefer that those who want to do them keep that to themselves

4. that there is a widespread tendency to not only display same sex behavior in public but try to force the many who find it offensive to, for example, photograph events where such behavior is at least suggested.

5. That #4 is neigher just nor charitable.

6. That "straights" are now largely asking to be left alone, but often to no avail.

 

Bill Murphy,

If I find your argument distasteful, does that create an obligation for you to not comment?

that there is a widespread tendency to not only display same sex behavior in public but try to force the many who find it offensive to, for example, photograph events where such behavior is at least suggested."

"display same sex behavior in public."

What, pray tell, is same sex behavior? I know tons of people in same sex relationships, and I'm thinking of the behaviors they exhibit in public, and trying to figure out how they differ from behaviors I exhibit in public. 

that many will, and do, find same sex acts to be distasteful and would prefer that those who want to do them keep that to themselves. 

And here we are: it's not that people who are icked out by gays are being persecuted, it's that they're being discomforted. They are not persecuted; they are having to deal with the fact that they are slightly less privileged than they used to be. 

 

 

 

I mean, really:

"display same sex behavior in public."

Good grief.

Ann, no one is telling bakers that they have to purchase or stock statuettes they don't want to use, for whatever reason.  So this isn't some big moral dilemma for the baker.  They say, "gosh, we don't have those in stock so I'll have to order it or you can buy it and give it to me to place on the cake or do it yourself." 

Also, friend's mom was a baker and you wouldn't believe what kind of compromising cakes bakers are asked to try to figure out how to make.  Think bachelor's party and jock celebration kind of stuff.  Most just shrug and get on with it.  It's a cake for heaven's sake.

Mark, a long-time but casual friend of my husband's started posting things on Facebook that I found distasteful (and maybe offensive).  So I blocked her posts from showing up without saying anything.  Am I a bad friend?  Why or why not?

What facts about the subject matter of her posts would be relevant to your determination of whether I should (a) keep reading them anyway; (b) tell her what I did and why or (c) do exactly as I did.?

I'm not telling you not to go to the wedding, I'm just saying you don't have to because, surely we deserve some agency in these kinds of matters.

 

Barbara --

My statuette case was just a hypothetical to illustrate certain points.  But I don't doubt that for some radically unhappy people the statuette could symbolize all that they dislike about gay culture, and somebody like that might feel it's the last straw and make a stink about having to cater a cake for a gay wedding. 

Bill Murphy, thanks for your kind words to me.  Regarding this:

4. that there is a widespread tendency to not only display same sex behavior in public but try to force the many who find it offensive to, for example, photograph events where such behavior is at least suggested.

I assume by "the many who find [same sex behavior] offensive", you're referring to the people in our society (presumably it's a large number) who personally find open displays of same sex affection to be repugnant.  (1) I don't think that's precisely in-scope for this discussion; at least on my part, I've been talking about the very narrow, small and specific groups of professionals who are wedding vendors: photographers, wedding planners, florists, et al; (2) "find offensive" suggests the "ick" reaction that one or two other commenters have already noted.  It's important to make a distinction between that reaction and the objection that is being made by the vendors who have been sued: objecting to collaborating in these weddings is a *religious* objection.  The religious objection should be kept separate from any personal abhorrence that may be felt.

I assume that most of us here have been around the block a few times.  We all understand that it is the "ick factor" that drives people's emotional reaction to these cases: people who think same-sex behavior is icky want to be able to say "ick" and don't want the government or gay activists to tell them that they can't say "ick" anymore; LGBTs want the freedom to be themselves without having to hear others say "ick", and evidently some of them would like to be able to bring the power of government to bear to punish those who say "ick".  

The religious objection doesn't depend on "ick".  The only thing it depends on is, "my faith forbids me from collaborating in this social arrangement because my faith tells me it is sinful."  It's not difficult to think of other arrangements and acts that almost nobody finds repugnant - that most of us find incredibly tempting - but which our faith tells us we shouldn't collaborate in.  People who raise the religious objection are asking the government not to force them to violate the tenets of their faith.  "Ick" is irrelevant.

 

So this is entirely about hating the idea of personal interaction with a gay person, right? The examples are almost all hypothetical small business owners who service weddings. I guess market makers "surrendered" long ago, being required to buy and sell stocks so that the exchange remains open.

Minor point about what is art: Many museums have collections of photographs because they are appreciated as artworks.  Some even have collections of costumes.  But I've never heard of a museum's collecting wedding cakes.  The cakes are sometimes said to be "works ofart", but the value of such artworks are not the sort that society as a whole consiers valuable enough to preserve. 

Museums are primarily for permanent, visual arts.  There is a visually artistic aspect to serious food, and certainly to a wedding cake, but food isn't permanent - it's got a short shelf-life.  Nevertheless, there is an artistic, or at least a artisanal, aspect to something like a wedding cake.  

Your comment caused me to reflect that musicians for whom weddings are an important source of income (live music-making is another art that is primarily neither visual or permanent) - could also lack the right to decline to provide their craft to a same sex wedding ceremony or reception for conscience or religious reasons.

 

Also, friend's mom was a baker and you wouldn't believe what kind of compromising cakes bakers are asked to try to figure out how to make.  Think bachelor's party and jock celebration kind of stuff.  Most just shrug and get on with it.  It's a cake for heaven's sake

Barbara - I'm sure you're right that most "just shrug and get on with it".  I daresay there are bakers out there who might find a same sex wedding objectionable who would nevertheless just shrug and make an excellent cake for the couple anyway.  But the occasional baker who is not like most, and genuinely believes that she can't in good conscience make this couple a cake  - that's the person who arguably needs to be protected from legal complaints and lawsuits.  

Also, I don't share your confidence that a two-male or two-female caketopper will always be amicably negotiated.  It would seem to be a necessary part of the product under offer.  

 

Jim P. --

About music not being a permanent art -- Paul Elie has a new book, "Reinventing Bach", which shows how the recording of music using new technologies (which makes some performances permanent) has changed the performances and has even inspired new sorts of music.  I could understand a couple wanting to have the actual music of their wedding recorded, similarly to photographing it. 

By the way, I find Elie's blog, Everything that Rises, particularly interesting.  It's about all sorts of important stuff like the arts, politics, religion.  He's the author who at a very young age wrote "The Life You Save Might Be Your Own".  Wise beyond his years, and then some.

Everything That Rises

Ann, thanks - that does look like a quite interesting blog, and I will try to include it in my rounds.  Plus, I strongly suspect he showed the great good sense to quote you in a recent post :-)

Ann, regarding the recording of music - you're right that a recording does, at least to some extent, encase in amber what was originally a rather transient experience.  I say "to some extent" because I believe that we can experience the same recording differently at different times and in different situations.  A recorded piece may move us tremendously the first time we hear it, but we may find it  difficult or impossible to recapture that emotional "magic" on subsequent hearings.  Or a new recording may strike us as rather uninteresting at first, but it may grow on us with repeated hearings.

In the old days, when sheet music was the primary commercial medium for popular songs, the whole process for consuming music was a bit different: the consumer might hear the tune on the radio, on the stage or in a movie theater, but in purchasing the sheet music, the consumer also became, by necessity, a producer, because someone had to sit down at the piano and plunk out the song in order to experience the music.  Jazz, which would start with a standard popular tune, frequently composed by someone else (the "sheet music"), and then transform it via arrangement and improvisation, pushed this consumer/producer dynamic pretty far.  

Of course, nowadays, when a specific performance is recorded and distributed, the dynamic of musical consumption is a good deal more passive.  Every single note and tempo and contrast is the same, every time.  Recording artists nowadays are known to lip-sync the recording at their concerts, rather than recreate the piece afresh.  It's become the exact opposite of the spirit of jazz, which prizes newness and re-creation. (My reaction to a lip-sync'd concert performance would be, "I paid $175 for this?  It's already on my iPod.")

 Weddings happen to be events in which the live and transient nature of music is still honored, both in the church and (at least when a band is hired) at the reception.

Sorry, I know this is a big digression.

 

Several days ago now, Mark Logsdon made an interesting comment that, for whatever reason, hasn't spurred additional conversation so far but which I found thought-provoking:

We went off the tracks in ever allowing a Christian sacrament to have the authority of the State.  We get on quite well leaving baptism to the traditions of our various churches (if any), and services for the dead, also. 

I just want to note that on First Things' blog today, the editors asked eight writers, most of them scholars or clergy, to answer this question: With the legal affirmation of same-sex marriage in some states, should churches, synagogues, and mosques stop performing civil marriages?  The eight responses are here, for anyone interested:

http://www.firstthings.com/article/2014/04/the-church-and-civil-marriage

 

Jim Pauwels,

Thanks for linking the First Things material.   The contributions are intersting.

I was - though perhaps I should not have been - surprised that the person closest to my thinking as I wrote the initial comment is the Orthodox specialist.  If, as seems the case, the concern is that the non-Believers of the State and society will control our beliefs, then the experience of the Othodox under Islam and Jews under both Islam and Chistianity have a basis that we would probaly wish to consider. 

Does anyone reading here believe that the ability of the Christian Church to speak Truth to Power on marriage (or other issues) depends on civil sanction of weddings conducted in churches?

Mark L.

Barbara,

I assume the purpose of marriage is to celebrate Love [between the spouses, as between God and His Creation, including the two who are to be married]. I am not sure what all the purposes of exchanges on social media may be, but I am pretty sure they are not of that order of signifigance.

I completely agree that I have the agency to stay away.  And the Earth will continue to rotate on its axis if I do.   But my world would  not be the same, poorer by virtue of *my* understanding of the judgment I made.

There never was an issue of my not going.   My question was for those opposed to SSM: where does agape point us?

Mark L

 

Jim Pauwels,

Thanks for the link.

  • Ryan T. Anderson focuses on the possibility of a church being forced to perform same-sex marriages, which is a straw man. No church is required to marry anyone, even in cases where a business open to the public would be required to serve.
  • Vigen Guroian desires that there be no separation between the state and the Orthodox Church. However, his familiarity with living as the minority religion allows him to aquiess to the idea of separating what the state does and what the church does.
  • Russell D. Moore understands that legally solemnizing a marriage doesn't represent an endorsement of the state's definition of marriage. On the contrary, they are able to express an alternative definition of marriage via their choices of what marriages to solemnize.
  • Francesca Aran Murphy goes beyond Anderson's strawman to raise the possibility that views may soon be criminalized.
  • David Novak's commentary focuses on Canada, which makes it harder for me whether the threat of legal compulsion is a likely scenario. To answer his question about polygamy, because marriage no longer involves the wive's identity being legally subsumed into her husband's, polygamy would have to be a relationship between three or more equal persons rather than one person absorbing multiple others. Establishing the mechanisms for handing a polygamous is much more difficult than removing "one man and one woman" from an otherwise sex-neutral legal system.
  • Edward Peters seems to be confused about what the question at hand (whether clergy should stop legally solemnizing marriages) is. He makes a distinction between the Catholic understanding of matrimony and the Catholic understanding of civil marriage without acknowledging that people can make a distinction between the Catholic understanding of natural marriage and how civil authorities define civil marriage.
  • Ephraim Radner believes that the Church should continue to bless those marriages that meet its requirements becausing doing so furthers the good of marriage.
  • Eric Teetsel proproses creating a curriculum to train people on a wide range of issues related marriage to help combat divorce and have clergy refuse to marry people who have not completed this course. I appreciate his focus on divorce, which has tangible negative effects, as well as the voluntary nature of his proposal.

NCR points out that the photographers have dropped the Religious Freedom part of their claim:

 

In asking the nation's highest court to hear the case, Huguenin and her husband, Jonathan, dropped their religious freedom claim and are focusing solely on free speech -- in this case, the freedom not to photograph same-sex ceremonies.

 

That sets the case apart from legislative efforts in some states to carve religious exemptions to anti-discrimination statutes. The Huguenins' lawyers and supporters don't contend that businesses such as restaurants and hotels can refuse to serve gays and lesbians. A measure that could have had that effect was vetoed in Arizona last month by Gov. Jan Brewer.

 

Their argument is that professionals whose work is by nature expressive -- such as writers, advertisers and website designers -- should not have to apply their artistic talents to subjects on which they disagree.

 

https://www.commonwealmagazine.org/blog/same-sex-marriage-and-religious-...

 

One of the arguments is that the US Supreme Court decided that New Hampshire drivers couldn't be compelled to display the State motto "Live free or Die" on their license plates if they disagreed with it. 

 

Here, as in Barnette*, we are faced with a state measure which forces an individual, as part of his daily life - indeed constantly while his automobile is in public view - to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State "invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." 

 

New Hampshire's statute in effect requires that appellees use their private property as a "mobile billboard" for the State's ideological message - or suffer a penalty, as Maynard already has. As a condition to driving an automobile - a virtual necessity for most Americans - the Maynards must display "Live Free or Die" to hundreds of people each day. The fact that most individuals agree with the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.

 

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol...

 

*Barnette was the case that decided that students couldn't be required to salute the flag. 

 

The State Supreme Court said that the photographers weren't being forced to endorse a point of view they opposed because they were free to say in signs in their shop and in advertisements that they oppose same-sex marriage and make cakes for same-sex marriages only because it is required by state law. 

 

Similarly, the minority on the US Supreme Court took the view that displaying a state issued license plate wasn't speech and that "appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die" and that they violently disagree with the connotations of that motto."

 

So, if the US Supreme Court agrees to hear the case (they aren't required to), a question will be whether making photographs of a wedding is "speech" 

 

I will shut off auto-correct on my new iPad

Ryan - re: Edward Peters' response: I thought it was the most interesting of the eight. His main contention seems to be that it's not the church that ever decided to be in the civil-marriage business in the first place; it was the state that decided that weddings performed in churches would be recognized by the state as well.  The church, in his view, lacks the authority to tell the state whether or not the weddings the church officiates should also be recognized by the state. Only the state can determine what it recognizes.  Thus, in Peters' view the question is poorly phrased, or perhaps is founded on a flawed premise.  As I say, it's an interesting take on the question.

Several of the respondents voice an analogous caution regarding first-amendment protections for religious exemptions for clergy: those protections hold only insofar as the state agrees that they hold.  Apparently, several of the respondents no longer trust the state to maintain those exemptions.  

Istm that this could actually play out in real life along those lines: a same sex couple (or several same sex couples in different jurisdictions) would accuse churches of being discriminatory for refusing to perform same sex marriages.  Some legislatures and/or judges would agree.  The legislatures' and/or judges' remedy would be to strip away the clergy's civil-marriage faculties.

Couples who wish to be married in church already go to the state first, to obtain a marriage license.  In the future, couples would do the same thing, but they may also make one extra visit, to a judge's chambers, for the civil wedding.  Possibly the church's presiding minister wouldn't officiate at the couple's wedding unless they can show that they're already civilly married, i,e. the proof-of-civil-marriage requirement would replace the proof-of-marriage-license requirement.

 

Couples who wish to be married in church already go to the state first, to obtain a marriage license.  In the future, couples would do the same thing, but they may also make one extra visit, to a judge's chambers, for the civil wedding.  Possibly the church's presiding minister wouldn't officiate at the couple's wedding unless they can show that they're already civilly married, i,e. the proof-of-civil-marriage requirement would replace the proof-of-marriage-license requirement.

Some countries (France, etc) have done that for a long time and the Church doesn't seem to have a problem with it.

In the US, the couple first get a marriage license from the state and take it to a priest or deacon, who performs the marriage liturgy. The priest or deacon records the marriage in the church register, but the state only recognizes the marriage if the priest or deacon is authorized by the state to perform [civil] marriage ceremonies, signs the wedding license, and returns it to the city or town clerk. 

In Massachusetts, that authorization has to be renewed each year. In the unlikely event that the state proposed to require Catholic priests and deacons to perform same sex [civil] marriages, I assume that the Church would stop filing requests for annual renewals and would go out of the civil marriage business.

As of January 1, 2004, all churches and religious organizations must file ANNUALLY information relating to persons recognized or licensed by that entity and information relating to the “usages” of that organization.

Upon receipt of the above information, this office will consider the individual duly recorded to perform marriage ceremonies within the Commonwealth of Massachusetts.

http://www.sec.state.ma.us/pre/premar/masmarriage.htm

John - that's interesting.  My state (Illinois) has never asked me personally to renew my autorization; I assume it's handled at a diocesan level.

I'd guess that the process you outlined probably is quite similar to what happened with Catholic Charities in Illinois got out of the foster care business, and when the Church got out of the adoption business in MA.

 

 

Edward Peters wrote It is not clear, therefore, exactly how religious institutions could unilaterally withhold civil recognition of their wedding rites any more than they could compel civil recognition of their rites by states unwilling to grant it

Any diocese could announce that it's priests and deacons were no longer authorized to sign wedding licenses to be returned to the government to be recorded in state records.

The Sacrament of Matrimony would be performed only after a couple had contracted a civil marriage and presented proof of that to the priest or deacon. That sacrament would be recorded only in the parish registers, like any other sacrament, and would not be reported to the state. 

In the eyes of the Church, the couple would not be married until the Sacrament was performed. 

I suppose the political problem with this from the Bishops' standpoint is that it acknowledges that it's possible for people to distinguish between sacramental marriage and civil marriage. 

Jim Pauwels,

Several of the respondents voice an analogous caution regarding first-amendment protections for religious exemptions for clergy: those protections hold only insofar as the state agrees that they hold.  Apparently, several of the respondents no longer trust the state to maintain those exemptions.  

Istm that this could actually play out in real life along those lines: a same sex couple (or several same sex couples in different jurisdictions) would accuse churches of being discriminatory for refusing to perform same sex marriages.  Some legislatures and/or judges would agree.  The legislatures' and/or judges' remedy would be to strip away the clergy's civil-marriage faculties.

I see no evidence of that our existing First Amendment framework is in danger. The issue of discriminating against gays and lesbians and their marriages is playing out in the same way that discrimination on the basis of other protected qualities have played out: public accomodations have to accomodate the public while religious bodies have broad discretion. I don't see this changing. If a religious school can discriminate against a teacher with a disability, I don't see how a gay couple trying to force a church to marry them will get more sympathy.

Because of this, I consider those who publicly fret about the possibility of a church being forced to perform same sex marriages to be at best gravely misinformed and at worst intentionally bearing false witness in order to advance their political and fundraising goals.

The reason I felt Edward Peters was confused is that he seemed ignorant of the need for clergy to cooperate in order to a church wedding to also become a legal wedding. If the priest doesn't fill out the paperwork, the couple doesn't become legally married. It's not clear to me how the state could recognize a religious wedding ceremony as meeting the legal requirements as well without cooperation from the religion.

I want to apologize for my bad etiquette in starting this thread and promptly going on a trip. I've been catching up with the thread now. 

What's especially interesting to me is how the "free speech" argument was discussed here by commenters, which in fact has become the main argument being brought by the petitioners and their amici before the court. Summary of that argument here.

They've shifted from free exericse rights to free speech rights, and if the court decides to grant a sense of "hybrid rights," then the limits of the free exercise clause (as in Smith) can be extended (according to the opinion in Smith).

I would also note that many supporters of Elane Photography are also supporters of same-sex marriage (including the authors of the main amicus brief, along with Andrew Sullivan, Conor Friedersdorf, Will Saletan, etc.), which ought to temper the charges of bigotry.

And to those who think this is an easy or obvious case -- as it admittedly seems if race is the operative analogy -- I would say that the Supreme Court doesn't seem to think it's obvious. They delayed making an announcement yesterday about whether the case would go forward, which indicates not necessarily that they're going to take it, but that they're giving it serious consideration and needed more time for another conference.

 

Thanks for this great piece. We find it valuable to discuss these issues. We're also looking at religious freedom on our blog at http://berkleycenter.georgetown.edu/rfp/blog.

Add new comment

You may login with your assigned e-mail address.
The password field is case sensitive.

Or log in with...

Add new comment